Taussig v. Bode & Haslett

PER CURIAM. Action to recover damages for loss from sixty-four barrels of spirits deposited in defendant’s warehouse. The case was tried before a jury. Plaintiffs recovered a verdict. Defendant made a motion for a new trial, which was denied, and this appeal is from the judgment and order denying the defendant’s said motion. It is claimed by defendant, and we think correctly, that the evidence is insufficient to justify the verdict. The defendant is and was at all the times mentioned in the complaint engaged in the business of keeping a bonded warehouse. It is alleged in the complaint that about the twentieth day of January, 1896, the defendant, for hire, received on storage from plaintiffs sixty-four barrels of spirits, for the purpose of safely storing and keeping, and returning the same upon demand; that “defendant did not well or safely or properly store, handle, keep or return said barrels or packages, and said spirits contained therein, but, on the contrary, said defendant improperly, carelessly and negligently stored, handled, and kept said barrels or packages and , said spirits, and in consequence of said carelessness and negligence, and of said improper handling and storage of said barrels or packages, .... a large quantity of said spirits was permitted to leak out of said barrels, and to become lost and destroyed.”

The plaintiffs having alleged 'damage by reason of the negligence of defendant, the burden was upon them to prove such negligence affirmatively: Shear. & R. Neg., 5th ed., sec. [65157]; Schouler, Bailm. & Carr., 3d ed., see. 23; Jackson v. Sacramento Valley R. R. Co., 23 Cal. 269.

The evidence is substantially without conflict, and shows that on the twentieth day of January, 1896, the spirits arrived at defendant’s warehouse, and, upon notification being made to them, plaintiffs sent their agent to inspect the goods. After such inspection the agent reported to defendant that the lot was in proper condition to be piled, and the barrels were at once piled by defendant in the usual method followed by it. The method of handling the barrels and of piling them was shown to be proper. They were stored two tiers in height, and dunnage, or strips of wood, placed between the first bilge hoop and the second bilge hoop for the barrels to rest upon. On March 4, 1896, the defendant for the first time discovered that some of the barrels were leaking, and immediately telephoned to plaintiffs. Plaintiffs went to the defendant’s warehouse, and upon receiving the sixty-four barrels found that eight of them showed excessive loss by leakage. One barrel was practically empty, three or four leaking pretty badly, and the others leaking to some extent. The total amount of leakage over and above the ordinary allowance for evaporation was one hundred and eighty-one and one-half running gallons, or two hundred and twenty-five and one-half proof gallons, of the value of $434.50. The plaintiffs immediately sent Nyland and Herbert, two competent parties, to examine the barrels, to determine as to whether or not the cooperage was defective. The witness Nyland testified: “I took the head out of the barrels, and found they didn’t have as much glue in as other barrels had.....I found four or five of the joints that were caulked with a kind of string, something like a lamp wick, the same as they use around distilleries and warehouses, and around places ivhere there are leaky joints.....The glue in the barrel stuck in most places, in what I call the most defective places. Prom my knowledge as an expert, the fact that the gluing did not stick in some places would account to a great extent for the leakage from that barrel.” The witness Herbert testified: “The packages I saw needed driving very much. They were shrunk. I could tell' from my examination whether the wood from which they were made was or was not properly seasoned. It was not well seasoned. A barrel that was made of such wood as that would be dangerous, and likely to shrink