Southern Iron & Equipment Co. v. Smith

WOODSON, J. This suit was instituted in the circuit court of Jackson county by the plaintiff to recover of defendant rent claimed to he due it on three locomotive engines and certain expense and repairs made upon them by plaintiff. The petition was in two counts, the first was for rent and the second was for the expense and repairs. A trial was had which resulted in a judgment for the plaintiff for the full amount sued for in each count, aggregating $11,705.70. From this judgment the defendant appealed to this court. The litigation grew out of the following contract made and entered into by and between the plaintiff and defendant regarding the engines previously mentioned, viz.: “Memorandum of agreement between Southern* Iron é Equipment Co. of Atlanta, Georgia, and L. J. Smith o f Simms, Louisiana. “First, Southern Iron & Equipment Co. agree to rent, or lease, to L. J. Smith three locomotives for use — 235 — in construction service in Arkansas and Louisiana, on the following terms and conditions: “Locomotive No. 627, Schenectady 18x24-inch ten wheeler with 50-inch centers; locomotive No. 625,. 20x24-inch consolidation with 44-inch centers; and locomotive No. 618, Schenectady 18x24-inch six driver-switcher, all of said engines having been overhauled and in first class operative condition. The price to be paid by L. J. Smith to the Southern Iron & Equipment Co. for said engines is $345 per month for each engine from the time engines leave our shop until returned to our shop, with an allowance of four days free time on the going trip. “Second, The said L. J. Smith agrees to take good and reasonable care of the locomotives, using them on single shift, that is, not exceeding ten or twelve hours out of twenty-four hours per day, and not exceeding six days per week, and return same to the Southern Iron & Equipment in as good condition as when received, usual wear and tear excepted. ‘ ‘ Third, Said L. J. Smith shall have the privilege of purchasing all or any one of the three above-mentioned locomotives at the following prices: Locomotive No. 625, $5600; No. 627, $5800; No. 618, $4850-. In the event he decides to do so, the rental for that current month shall be applied to the purchase price. “Fourth, Payments to be made by the 20th of the month for the rental for the preceding month. This trade to cover period of four months, the said L. J. Smith having the privilege of retaining the engines for á longer period on the same basis. “Executed in duplicate this--day of February, 1908.” The appellant’s evidence tended to show the following facts: That the appellant was a railroad contractor and was engaged in ballasting and surfacing portions of the lines of the St. Louis, Iron Mountain & Southern Rail — 236 — way Company, in the States of Arkansas and Louisiana. In order to do that work appellant had to use stone and other suitable materials, which had to be transported some distance over the tracks of the railway company. This, of course, necessitated the procurement of engines. With that object in view the appellant applied to respondent for the three engines mentioned, and on February 3, 1908', the former went to the shops of the latter in Atlanta, Georgia, and made known his wants; and after discussing the matter fully with the officers of respondent, and explaining to them the character and location of his business, as well as the purposes for which the engines were to be used, the appellant was shown three engines, Nos. 618', 625 and 627, and was assured that all of them had been recently overhauled and repaired and were in good operating condition. The appellant made only a casual observation of the engines before making the contract, never saw them fired up or had any opportunity to see how they would work. In fact, the evidence shows that appellant was not an engineer, and knew but little about their condition or suitability for work, and so told Mr. Kern, the president of the respondent. Also told him that he was not competent to inspect the engines and had no one there to do it for him. In reply Mr. Kern said it was not necessary, that the engines had just been through the shops and were in first class working condition and that he would put that in the contract. That knowing practically nothing about engines, appellant relied upon the respondent’s statements of Mr. Kern, as to their condition and their suitability for the purposes mentioned and for that reason entered into the contract previously set out. That the engines were drawn as freight and not propelled by their own power from Atlanta to Simms, Louisiana. From Atlanta to Memphis the servants of — 237 — respondent attended the engines and from the latter place to Simms those of appellant were in charge. That the engines were carefully attended and properly handled from the time they left Atlanta until their arrival at Simms, and especially from Memphis to the latter point. That up on-the arrival of the engines at Simms they were fired up and put into service, but after proper and fair trials they wholly failed to perform the work designed and called for in the contract. That upon examinations made by capable men in that business, the engines were found to be mechanically defective and out of repair in many respects, totally unfit to perform the services for which they were rented — not capable of pulling one-half of the tonnage they were designed to draw, and thereby doubling the expense of carriage and rendering them utterly useless to the appellant. That after several days of trials of the engines, and after one of them had been twice taken to the shops in Alexandria for repairs, the appellant, by numerous letters and telegrams notified the respondent of their worthless condition and requested Mr. Kern to send a man to Simms to investigate and repair the defects. That these defects were so numerous it would be trespassing upon time and space to recite them here; a number of which, if they existed, would render the engines absolutely worthless. That the only reply appellant received was a denial that the engines were defective or were not suitable for the purposes as rented. That finally, on February 25th, 1908', Mr. W. A. Love, vice-president of the respondent, went to Simms and looked over the engines, but made no effort whatever to put them in useful condition ; and thereupon the appellant stored the engines upon a side track, in charge of a watchman, and notified respondent that they were held at its risk and subject to its orders. — 238 — That during the time the engines were in the possession of the appellant they were never used except in the trials previously mentioned. That, in fact, they were not only of no value to appellant, but were of great cost and expense in trying to use them in the matter of wages, fuel, loss of time, storage, etc. That at the solicitation of Mr. Kern, the president of respondent, the appellant met him on June 10', 1908, in the city of St. Louis, for the purpose of conferring with reference to the condition of the engines and as to what should be done with them. After fully discussing the matter it was agreed between them that Mr. Kern should send the foreman of his shop to Simms, where ihe engines had been stored, and go over them for the purpose of seeing whether or not they could' be made to perform the work mentioned in the contract. That in pursuance to that consultation, the respondent sent George Bird to Simms, who carefully inspected the engines, without making a report, as I understand the record, to the appellant, and caused them to be removed to a machine and boiler shop at Alexandria, for the purpose of making the repairs that were necessary to put them in operating condition, which cost several hundred dollars. After these repairs had been made the engines were returned to appellant for use; but after repeated trials they were found to be wholly incapable to perform the work for which they were rented. The evidence also tended to show that they were old, antedated engines, worn out and absolutely worthless. After these futile tests had been made, the appellant caused the engines to be returned to respondent, at its shops in Atlanta, Georgia; two of them arriving on November 18, 1908', and the other December 5th of the same year. The evidence for the respondent contradicted the evidence of the appellant in almost every particular, — 239 — except that the engines came up to the provisions and terms of the contract, regarding their capacity to do the work of appellant in Arkansas and Louisiana; but it did tend to show that they were in first class operating condition when they left Atlanta, and of course that had some probative force upon their capability to do the work in the States mentioned. At the close of the plaintiff’s and at the close of all the evidence in the case, the appellant requested the court to give a peremptory instruction telling the jury to find for him, which was by the court refused, and appellant duly excepted. CaseafaCie I. There are but three questions presented by this appeal for determination: first, did the evidence make out a prima-facie case for the jury; second, C01irt properly instruct the jury as to the capability of the engines to perform the work for which they were rented in the States of Arkansas and Louisiana; and, third, did the court err in permitting expert witnesses to express opinions as to the facts of the case, which were the ultimate facts required to be found by the jury? Regarding the first: After carefully reading the evidence in the case, covering some three hundred and fifty pages, we are fully satisfied that a prima-facie case was made out for the jury; and that the court properly refused to sustain the demurrer to respondent’s evidence at the close of its case, and to give, at the close of all the evidence in the case, the peremptory instruction telling the jury to find for the appellant. Bented Engines: t^se?h|nstruct¡on' in Keeping With II. Attending the' second: In substance, the court instructed the jury on behalf of respondent over the objections and exceptions of counsel fox appellant, that if they found from the evidence that the engines when delivered to appellant in Atlanta, Georgia, were in first class operating condi — 240 — tion, then they would find for the respondent, even though they might further find that as a matter of fact the engines rented were not suitable for, nor would do the work in Arkansas and Louisiana, mentioned in the contract. Counsel for appellant asked an instruction to the converse of that asked by the respondent, which was by the court refused, and counsel duly excepted. Clearly the action of the court in giving the former for respondent and refusing the latter for appellant was error. Not only did the contract entered into between the parties disclose the fact that the engines were designed to be used for a particular character of work, but also that the work was to be performed in the States of Arkansas and Louisiana, using this language: ‘ ‘ First, Southern Iron & Equipment Co. agrees to rent, or lease, to L. J. ■ Smith three locomotives for use in construction service in Arkansas a/nd Louisiana, on the following terms and conditions.” Then follows the numbers and descriptions of the engines, and then continues: “all of said engines having been overhauled and in first class operative condition.” This language has but one meaning, namely, that appellant rented three engines from respondent for “construction service in Arkansas and Louisiana,” and that the latter agreed that they were “in first class operative condition,” for the purpose of doing- that work. The contract specifically states the kind of work for which the engines were leased; the place where the work was to be done, and then warrants that they had recently been overhauled and were in first class operating condition. This language is too plain for argument, and it would but tend to confuse its meaning by discussing it further. An abundance of evidence was introduced by appellant tending to show that the engines were prac — 241 — tically worthless for the purposes for which they were leased; and if that was true, then there was a clear breach of the warranty and the respondent was not entitled to a recovery, and the court should have so told the jury in proper instructions. The respondent’s theory of the case was that if the engines in question were mechanically ‘ ‘ in first class operating condition” when they left Atlanta, then the contract had been fully performed upon its part, and that it was entitled to a recovery. That is clearly an erroneous construction of the contract, for the simple reason that it totally ignores the fact that it provides that they were leased for construction purposes in Arkansas and Louisiana, and that they had recently been overhauled, and were in first class condition for that work. These views of the law have been so fully and clearly discussed by this and other courts of the country, nothing new can be said upon the subject. [5 Cyc. 179, (III) and cases cited; Mark v. Williams Cooperage Co., 204 Mo. 242; Moore v. Koger, 113 Mo. App. 423; Tufts v. Verkuyl, 124 Mich. 242; Bass v. Cantor, 123 Ind. 444; Conn v. Hunsberger, 224 Pa. St. 154; Ferguson Implement Co. v. Parmer, 128 Mo. App. 300; Leavitt v. Fiberloid Co., 196 Mass. 440; Blackmore v. Fairbanks, Morse & Co., 79 Iowa, 282.] Expert Testimony: Conclusion: No Statement of Facts. III. The third proposition presented by the appeal, as previously stated, is in regard to the soundness of the rulings of the court in permitting expert witnesses to give their opinions as to the ultimate facts in the case which had to be found by the jury, in order to determine whether or not the engines were in first class operating condition for the purposes leased. — 242 — The appellant’s evidence tended to show in many •details the defective conditions of the engines when they reached Simms, Louisiana, and that it was bé■cause of those defects the engines were not in first class operating condition, and for that reason would not do the work. It was for repairing those defects, if I correctly understand the record, respondent made and charged appellant $748.70, which constitutes the subject-matter of the second count in the petition; and by an examination of the itemized account presented to appellant for the labor performed and materials furnished in that regard, which consists of hundreds •of items, I would judge that there was scarcely a sound bolt or piece of machinery existing in the entire three •engines. Whether this statement is perfectly accurate ■or not, is immaterial, but being largely so, it serves .just as well to preface the objections made to the testimony of the expert witnesses. Those questions, objections and answers are so numerous and lengthy that it would be a useless waste •of time and labor to undertake to set them out; and we will therefore only refer to the substance of a few of them. The character of questions were continually asked, ‘“In what sort of condition” was this or that part of the engine? “In what condition were the engines?-” “In what condition was the machinery part of the engine?” “In what sort of condition was the woodwork •of the engine?” Counsel for appellant have also selected from the :record ten pages of these classes of questions. Objections were properly and timely made, and in practically every instance the witness would answer substantially as follows: “In good condition.” “They were good.” “The condition was good.” ‘‘They were in first class order.’■’ “It was in first class •condition” and so on to the end of the chapter. — 243 — In passing, it might be pertinent to ask, that if tbe engines were in snob perfect condition when they left Atlanta, wby did they need so many repairs when they reached Simms, in the absence of any evidence that any of them were in a wreck or received any violent treatment other than that incidental to having been pulled by another engine along the railway tracks 1 None of these questions called for a statement of the facts as to what was the real condition of any one or more of the engines or as to the condition of any portion of them. The questions called for conclusions and in each and every instance the answer was a conclusion ; thereby telling the jury the condition of things instead of stating the facts and leaving the jury to determine the conditions. It cannot be sincerely contended that the witnesses could answer the question in no other way, for two reasons: first, because the questions should not have been propounded in that form; and, second, by an examination of pages eleven to twenty-four of respondent’s abstract of the record, it will be seen that counsel had no trouble whatever in pointing out particularly each and every portion of the engines, their condition, the defective parts thereof, and the repairs that had to be and were made. This being true, as shown by the respondent’s petition, it seems strange that these expert witnesses could not with equal particularity have described those matters to the jury, while upon the witness stand.' The object of that class of testimony is perfectly apparent. The design was to make the statements of conclusions to the effect that the engines were in the condition called for by the contract of lease, when they left Atlanta, and that they were either put out of commission by damage in transit or that the appellant wanted to repudiate his contract. Diversion: If either of those facts were true then there was mighty little evidence introduced to support it, especially in — 244 — comparison to the bald fact that they were not suitable for the work stated in the lease. , Returning: Had the expert witnesses been required to state the exact conditions of the various parts of the engines, as they or some other experts evidently did in the preparation of the petition and in the proof regarding the repairs, then the jury could have seen those parts with their vices and virtues regarding which neither party to the suit found any trouble in pointing out when it came to the repairs which had to be particularized. Moreover, there is another view to take of this evidence. Suppose for instance, the respondent had introduced five expert witnesses and each of them had been asked the identical question propounded in this record and that they had given the identical answer here recorded; and suppose upon the other hand the appellant had introduced five other experts and had asked them the same question, and they had given answers directly to the contrary, what on earth would the jury have known about the case? Absolutely nothing; and it would be no answer to say that the jury would be the judges'of the credibility of the witnesses and the weight' to be given to their testimony, for the simple reason that after so doing they would not know a single fact in the case and consequently must have delegated their functions as jurors to the five experts upon the one side or the other, to decide the case. But not so where the same number of witnesses testify diametrically opposite to each other regarding some fact, for the simple reason that in such case the jury may not only judge of the weight and credibility to be given to testimony of the witnesses, but they would have the right to resort to their own knowledge and experience regarding1 such facts, the probability or improbability of the truthfulness of their statements, as well as their position and opportunity to have seen and heard what transpired; but nay! not so — 245 — with expert witnesses; they testify regarding matters with which the jury has no knowledge or experience whatever; the jury cannot resort to their knowledge and experience of the facts about which such witnesses testify and cannot therefore call into requisition those Cod-given faculties, in passing. upon the credibility or the weight to be given to the testimony of such witnesses, without, as in ordinary cases, their questions and answers are predicated upon facts otherwise established by other evidence in the case. But in this case the trial court permitted the experts to state their opinions without stating the facts upon which they were based. There is no law for any such contention. This rule has been so often announced by this and other courts, it is passingly strange that the question should be continually presented here for determination. [Castanie v. Railroad, 249 Mo. 192; Smart v. Kansas City, 208 Mo. 162; Spaulding v. Edina, 122 Mo. App. l. c. 69; Dammann v. St. Louis, 152 Mo. 186; McMahon v. City of Dubuque, 107 Iowa, 62; Atherton v. Village of Bancroft, 114 Mich. 241; City of Topeka v. Sherwood, 39 Kas. 690.] IV. There are several other propositions presented and' discussed by counsel for the respective parties, but when the questions disposed of are given their full force and effect, it will be seen that all others are but incidental to them, and must be controlled thereby. Damages to A word regarding the materials alleged to have been furnished and the labor performed by respondent in repairing the engines, etc.; they are strictly incidental to the lease, and if the engines were suitable for the work contracted for in Arkansas and Louisiana and would perform the work by proper management and the appellant caused the damages which respondent claims — 246 — he did, and for that reason it became necessary for the respondent to expend the money for the materials and labor furnished, then the former should pay for the reasonable cost thereof; but if the engines were never suitable for the work and said expenditures were made for the purpose of trying to make them suitable, then the appellant is not responsible for the rents of the engines, nor for the said expenditures; but the respondent may be responsible if the evidence shows liability, as claimed in the answer, for the damages claimed by appellant. Entertaining these views of the case, we are of the opinion that the judgment of the trial court is erroneous and should be reversed and the cause remanded with directions to grant a new trial and proceed with the case in conformity to the views herein expressed. It is so ordered. All concur, except Graves and Faris, JJ., who dissent in a separate opinion by Graves, J.