Ward v. Otzen Packing Co.

LENNON, P. J.

The plaintiff, James Ward, was, in 1914, conducting a prune orchard in Marin County. He shipped three pickings, consisting of 13,175 pounds of prunes, to San Francisco, arriving on the nineteenth day of September, 1914. The prunes were delivered to the defendant, Otzen Packing Company, for final processing and packing in boxes. When so processed and packed they aggregated some 527 boxes, which were then stored in the wareroom of the defendant, where they remained from the month of October, 1914, to the latter part of January, 1915, when they were examined and found to be moldy, sugared, and in poor condition. The entire lot of prunes was finally sold at three cents per pound, with the exception of 112 pounds, which sold for one cent per pound. The market price at that time was six cents per pound.

The plaintiff thereupon brought suit against the defendant corporation, charging that the defendant had negligently

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warehoused the prunes and claiming damage in the amount of five hundred dollars. The court found that the allegations of negligence were true and that plaintiff was thereby-damaged in the sum of five hundred dollars, minus $27.31, the amount of defendant’s counterclaim for storage due. Judgment was accordingly rendered in favor of the plaintiff, from which judgment and from the order denying a new trial defendant prosecutes this appeal.

The only question presented is as to the sufficiency of the evidence to sustain the finding of negligence on the part of the defendant corporation.

It is contended that the evidence not only failed to show negligence on the part of the defendant in storing the prunes, but that it affirmatively showed that the condition of the prunes was caused by the failure of plaintiff to properly cure the prunes by sufficient sweating and drying. In this connection one Castle, a witness called upon behalf of the defendant, testified that “in very good weather—hot weather—• five days would be the time for prunes to be on the trays.” Another of defendant’s witnesses, one Porter, testified that prunes should sweat from ten days to two weeks. In attempting to qualify these witnesses as experts it was disclosed that neither had ever personally dried prunes, and that their testimony was based purely upon observation. Hunsinger, a witness called upon behalf of the plaintiff, testified that he had been in the business of growing and selling prunes “off and on for thirty years, ’ ’ and that he had usually picked, stored, and dried the prunes himself; that he had personally looked after the drying and dipping of the prunes in question; that as the prunes dried they were put in the storehouse on the ranch of the defendant and there turned twice. In effect this witness further testified that the method and time employed for the preliminary processing a quantity of prunes as small as the “batch” of prunes in question was a sufficient preparation for their packing and shipping. Both Hunsinger and Ward testified that the prunes when shipped from the ranch were in “fine condition.”