Simon v. Bemis Bros. Bag Co.

MOORE, P. J.

The purpose of this opinion is to demonstrate to appellant that under the rules of appellate procedure, the judgment now under review cannot be reversed. Not that its appeal is without merit, but because the law cannot alter its doctrines or its methods in determining whether any litigant has enjoyed a fair trial. These parties have submitted an acrid controversy to the arbitrament of reason under the guidance of long established principles. That the learned trial judge might with honor have decided for appellant is obvious upon a review of the record. But the flaming facts proved by respondents so enthralled the heart of his intelligence that he was compelled to adopt them as the basis for decision. Because the proof appropriated by the court is the warp and woof of the judgment, it ill behooves the reviewing court to linger among the charred ruins of the evidence introduced by appellant.

On July 13,1951, “the windows of the heavens were opened and the floods descended" upon the fair State of Kansas. The resultant waters overran the Kansas River which in turn inundated portions of Kansas City and fatally injured the merchandise and the plant of appellant. Many types and sizes of bags were rendered unfit for the salesroom of appellant. Consequently, they were offered for sale as damaged merchandise. Pursuant to appellant’s invitation, the witness Schneider, agent for respondents, visited the scene left by the disastrous flood in July, 1951, saw that the bags were in bales, “scattered over a very large

field;

some of them completely broken, some of them were partially broken open." He closed a deal with appellant “for so much apiece and didn’t know exactly how many bags, and for 289,795 bags was to pay $15,000, the balance sight draft and bill of lading. ’ ’ That made the price $85 per thousand bags. A week later, respondent Simon visited appellant’s plant and found that the bags had been wrapped and baled and fastened with wire. Each bale was marked with a heavy tag bearing the order

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number, name of customer and number of bags. It was fastened with heavy wire. The bales so tagged were hauled from appellant’s factory to a vacant lot in North Kansas City and placed on a railroad siding to be loaded for shipment; they were there guarded by a night watchman employed by appellant. Employees of appellant counted the bales, but they “assumed that there were a given number of bags to a particular bale.”