Baltimore Refrigerating & Heating Co. v. Kreiner

Worthington, J., delivered the opinion of the Court. This suit was instituted by the appellee against the appellant to recover the amount of loss which the former sustained by reason of the deterioration in quality of a large quantity of dressed ducks, chickens and squabs which he (the plaintiff) had in cold storage for hire, at the defendant’s cold storage warehouse at 410 S. Eutaw Street in Baltimore City. The plaintiff alleges negligence on the part of the defendant in failing to exercise due and proper care in managing and maintaining its cold storage warehouse, wherefore the poultry became decayed, mouldy and partially unmarketable. The remote cause of the injury seems to have been the bursting on December 28, 1904, of one of the City’s water mains on Eutaw Street about 500 or 600 feet north of the defendant’s warehouse.

The water from this broken main ran underground along one or more of the several pipe lines in the street, and some of it reached, and made its way into defendant’s cold storage cellar, flooding the cellar to the height of four or five feet and submerging a number of boxes containing the poultry in quesiion. The cellar remained in this flooded condition for twenty-four hours or more, before the leak could be repaired and the water from the cellar removed. The ice box or refrigerator where the poultry was stored was the rear part of the cellar, being separated'from the front ³⁶⁷ part by a so-called insulated partition. In this partition was a door opening from the front part of the cellar, or vestibule, into the ice box.

Under this door was a crevice one-sixteenth of a inch wide and four and one-half feet long. There was also a small gutter on each side of the cellar floor running under the partition, intended to carry off water used in washing the freezer or ice box. This water was collected by means of these little gutters in a hole in the vestibule part of the cellar and carried out from thence in buckets or barrels. There was, however, no drainage or sewer pipe in the cellar.

These facts are undisputed. The plaintiff’s witnesses also testified that a cold storage cellar was not a good place to store delicate poultry like this, because there would he more or less dampness about a cellar which would cause the poultry to mould and deteriorate. That poultry properly prepared and packed ought to keep from six to twelve months. That there was nothing in the nature of poultry, such as this to render it unmarketable or damaged from being left in cold storage for six months or more.

That this poultry was put in cold storage when freshly killed, and after being carefully prepared and packed for that purpose. That it was put in during August, 1904, on to January, 1905, and about the middle of January a box of squabs was taken out and the squabs found to be discolored and dark, and all the poultry was found to he in such a damaged condition that it had to he sold for half price. The defendant’s witnesses testified that this cellar was dry as a hone and 1he proper place for the storage of poultry. That the temperature in the freezer was maintained at 4 to 13 degrees.

Two of defendant’s witnesses on cross-examination also testified that a freezer is made airtight, or is supposed to be airtight, but not necessarily watertight; that they did not provide against water. In rebuttal two of the plaintiff’s witnesses testified, against the objection of the defendant, that a well constructed cold storage cellar should contain a drain pipe or sewer to carry off any superfluous water that might get in there, and also ³⁶⁸ that a freezer or ice box should be made airtight aud watertight. During the progress of the trial the defendant reserved four exceptions, three to the rulings of the Court on the admissibility of certain evidence, and one relating to the prayers. The verdict and judgment being for the plaintiff the defendant has appeared. 1st.

The first exception is to the ruling of the Court in permitting the following question, propounded to the plaintiff,, to be answered : Q. “How about the poultry that you prepared and packed in July and August in other years, in the same way, and which you left until' January and February following came out ?” Ans. “It came out all right.” It is of course well settled that the facts of the particular transaction are ordinarily the only legitimate evidence of the inquiry and the manner and cause of its occurrence, and not other and different occurrences. But it is equally well settled that facts occurring before or after the suit are admissible if they afford a fair and reasonable presumption of the fact to be tried; it being left to the jury to determine their precise force and effect. Brooke v. Winters, 39 Md. 505 ; Davis v. Calvert, 5 G. & J. 269 . In the present case this evidence was offered, as stated in appellee’s brief, “as tending to show that the injury to the plaintiff’s poultry was due to some act on the part of the defendant, and not to either the nature of the poultry itself, or to the way it was packed by the plaintiff.” While we do not think the question a proper one to have been asked or answered, under the circumstances of this case, for the reason that the facts sought to be elicited thereby related to other occurrences too remotely connected with the issue in this case to enable the jury to fairly infer therefrom, either that this particular poultry was properly prepared and packed, or that the injury complained of was due to negligence or want of care on the part of the defendant, yet ³⁶⁹ we are unable to see in what manner the defendant was prejudiced by the answer given.

In the case of Baltimore, Etc., Co. v. Leonhardt, 66 Aid. 70, cited in support of defendant’s contention as to this exception, the evidence was offered by the defendant to show that no accident had ever before happened to a passenger on the upper deck of one of its cars. This Court held that the evidence was properly excluded, the reason being of course that the defendant could not adduce evidence of proper care on its jjart, on former occasions as tending to show proper care on its part on the particular occasion then under investigation. In the case of Wise v. Ackerman, 76 Md. 375 , also relied upon by the defendant on this point, the offer was by the plaintiff to show that an accident, similar to that sued for in that case, had happened on a former occasion. This Court held the evidence inadmissible because it could not form “the basis of a well founded presumption as to the existence of negligence on the part of the defendant as the direct cause of the injury to the plaintiff,” in the case then before the Court.

In the case at bar the evidence is offered by the plaintiff, and shows that on former occasions the poultry stored by plaintiff with the defendant came out all right. While such evidence tended to show that the plaintiff had on former occasions properly prepared and packed the poultry stored by him with the defendant, yet, as we have said, the jury could not fairly infer therefrom how this particular poultry was packed or prepared. At the same time it tended to show that there was nothing in the nature of dressed poultry such as this to prevent its keeping in good condition in a cold storage cellar, for several months, and also that the defendant did ordinarily manage and maintain its cold storage warehouse in a careful and proper manner. The answer, therefore, taken altogether, was much stronger in favor of the defendant than of the plaintiff by whose counsel the question was propounded.

For this reason we think this exception furnishes no reversible error. ³⁷⁰ 2nd. The second and third exceptions relate to the action of the trial Court in permitting the plaintiffs witness, Get-tier, in rebuttal, to answer the two following questions: Q. “How ought a refrigerator situated as this used by the Baltimore Eefrigerating and Heating Company to have been constructed ?” A. “All the refrigerators I have ever seen, and I have been in abattoirs here, and in Washington and in New York, and been all through all the abattoirs, and they all have sewers in the cellars. “When the sewer main broke, it broke beside Swift & Co.’s warehouse, at the corner of Eutaw and Camden Streets, and we have as large, if not a larger cellar than the Baltimore Eefrigerating and Heating Company, and we did not have a cent of damage because we had a sewer there.” Q. “I asked you how the ice box ought to have been constructed, or how they are usually constructed ?” A. “They are usually constructed airtight and water-tight.” The objection to these questions is in both instances on the ground that the witness had not shown proper qualifications to make him an expert on the subject of the construction of storage warehouses. The admissibility of expert or opinion evidence is largely within the discretion of the trial Court, whose judgment is nevertheless always subject io review by this Court. Dashiell v. Griffith, 84 Md. 363 .

It must be shown that the witness possesses such intelligence and such familiarity with the subject as in the sound discretion of the Court will enable him to express a well-informed opinion in regard thereto. . Some subjects of course require a much higher degree of intelligence and of special knowledge than others. It is therefore said that expert capacity is a matter wholly relative to the subject of the particular inquiry. In the present case besides the evidence of his qualifications contained in his answer to the first of the above questions, the witness had before the questions were put to him, testified that he was' in ³⁷¹ the employ of Swift & Oo. engaged in the packing business, and had charge of, and looked after the cold storage department, and had done so for eight years; that for the last twenty-two or twenty-three years he had been working in the cold storage business; that he had been employed at three or four places where there were cold storage plants, including the abattoir in Baltimore; that he had been through some of Swift & Co.’s cold storage ¡xLants in Yew York, Washington and Norfolk; that he looked after the produce end of Swift & Co.’s business, such as poultry, butter and eggs; that he had knowledge of defendant’s plant from packing goods there for Swift & Co. AVe think these opportunities for observation, together with the experience which he was shown to have had in the cold storage business, qualified the witness to answer the questions propounded to him. 3.

The fourth exception relates to the granting of the plaintiff’s six prayers and to the rejection of two of the defendant’s prayers. All the prayers are set out in full in the report of this case preceding this opinion. The principal objection urged by the defendant’s counsel is to the granting of the planitiff’s second prayer. By that instruction the jury are told that if they find