
    ROBERT J. NOLAN versus PELICAN COLD STORAGE & WAREHOUSING CO., LTD.
    NO. 8307
    COURT OF APPEAL PARISH OF ORLEANS
    -WIIBIAMA. BEBB, JUDGE-
    June 19th, 1922.
    
      
    
   BY; '.iflEDIili A. B3DD, JUBC-R:

plaintiff sues defendant for the value of a certain quantity of egg yolks alleged to have teen deposited /with defendant, doing business in this Oity as a cold storage and v/arehouse company. Ehe petition sets forth that under a verbal agreement the eggs were deposited with the defendant during the months of ITovember and December of 1919, by Swift & Company, for account of plaintiff; that on the dates of deposit the eggs ware in good condition and frozen; that between Eovember 11th, 1919, and December 20th, 1919, plaintiff withdrew on different dates twenty-seven cases of frozen egg yolks, all of which wore in good condition and frozen, and had been properly kept by defendant; that on January 15th, 1920, plaintiff started to withdraw the remainder of the deposit, cut that same was ir> bad condition, unfrozen, unfit for use, and absolutely worthless, all due to the fault of defendant in not keeping them properly. Claiming the value of the spoiled eggs to be ?':801.90 at the time of deposit,-the petition concludes with prayer for judgment in said amount, and legal interest from judicial demand.

Defendant answers that plaintiff is without rifht of action, and in the same pleading resp/onds to .the merits by denying its liability, though admitting that the deposits as alleged, were made, not verbally, 'out under a written contract specially pleaded and made part of the answer, and further responding, it denies that the eggs vere frozen on the dates of deposit, inasmuch as there was no examination Dade of the eggs at'the time of delivery or deposit with defendant. It is also denied by respondent that at the time of the withdrawals that the eggs were in good condition and frozen, respondent again 3tating that it was not apprized of the oondition of the eggs at the time of their said withdrawal,-but it specifically alleges ’that all of the deposit while same existed, was properly kept by defendant. It is then specially denied that the bad condition of the withdrawals and their worthlessness was caused by its fault b0i_not keeping them properly.

Appeal has been taken to this court from a judgment of non-suit dismissing plaintiff's demand.

There has been very little evidence offered m this case, and all of the testimony taken at the trial in the lower court was that offered by plaintiff himself and by a witness whom he called and who was in the employ of svdft & Company, plaintiff's agent of deposit. Plaintiff'3 testimony is to the effect that he himself did not make the deposit in question, that it Tías made through Swift & Company as agent, and that he was not present at the time of the deposit, and could not, of his own knowledge, testify as to the condition of the egg yolks at that time. He does swear, however, that on the -occasion of all the withdrawals except the last, between the dates aforementioned, that the eggs were all in good condition and frozen, but that on lebruary 2nd, 1921, the date of the last withdrawal, that said eggs were thawed out and in bad condition.

He admits having discovered this condition upon visiting the oold storage room where the eggs were kept, but he does not testify, nor does anyone else, as to the temperature of the warehouse, either at the time of the deliveries or of the withdrawals.

It appears from his testimony that the eggs in question were bought by Swift & Company, who were directed by plaintiff to store same with the defendant company, and that when they were bought from Swift & Company that plaintiff did not examine them, nor did Swift & Company, his agent. At the time of the examination of the eggs claimed in this suit to have been spoiled, it appears that there was present with plaintiff a young boy in the employ of the defendant company, who plaintiff .has not seen fit to summon, or to shov/ that this young man, the only witness present at the time of the examination of the re-jeoted eggs, knew either the condition of the eggs or the temperature of the warehouse. Upon cross-examination plaintiff admits that he rejected other eggs on or about the time that the eggs in question were rejected, and that these other eggs were subsequently taken by the firm of J.l. Beer & Company, and plaintiff admits that these eggs taken by Beer & Company and stored in defendant's warehouse by Goodman & Beer, though rejected by plaintiff,were not so rejected because of the same not being frozen, but on the contrary, that they were frozen, he refusing to take them because the whites of the eggs were no good. He admits, however, that tnese same rejected eggs were in fact accepted by Goodman & Beer, and that they were undoubtedly frozen. He also admits that he never did business with any other house than the defendant company, and that in all previous transactions the'eggs deposited were always kept in pood condition.

Correspondence between the defendant company and plaintiff has been offered and received in evidence, and consists of two letters, bearing date long subsequent to the institution of this suit. This proceeding was filed on ICovca-ber 26th, 1920, and on the respective dates of Karoh 7th, 1921, and February 24th, 1921, the defendant wrote letters quite similar in their wording, and both to the effect that the eggs in storage for plaintiff's account, and which had been there for some time, had deteriorated, and the defendant feared that if kept there any longer they would have a bad effect on other articles in the warehouse, and that therefore, it was absolutely necessary that plaintiff should advise the company at once as to the disposition he wished to have made of them, as same would have to be removed from storage.

However, there is not a scintilla of evidence in the record to show that the condition of the eggs at the time of their attempted withdrawal and final rejection by plaintiff, was spoiled cláo^o any fault of the cold storage warehouse company, or that the said defendant had in any manner failed to oomply with any of the conditions of what the record shows was not a verbal, bat in fact, a 7/ritten agreement, or cold storage warehouse contract, there being no proof in the record that between the.times of the several deliveries for storage and the several withdrawals and final rejection, that defendant was ever-at fault in his contract, or that the eggs as deposited were in good condition at the tine of the deposits, or- in bad condition at the time of any of the withdrawals or of the rejection, and these facts, if possible of proof, being a burden which the law imposes Specifically upon the plaintiff, it follows that plaintiff has not made out a case against the defendant, and that he was properly non-suited.

Had the evidence established at the outset that the eggs at tho time of delivery were all in good condition, and that the total delivery, or any part thereof, at time of withdrawal, were in bad condition through some fault of the defendant , the burden would have shifted to the defendant,under the law/to overcome the presumption that it was at any time at fault under its oontraot.

Plaintiff's suit predicated upon allegations of a verbal oontraot, shown never to have existed, could have been dismissed upon the exceptions herein filed, but, defendant electing to set-up in its answer a written oontraot, has forced the plaintiff to reoord-admission of said written agreement, under this situation plaintiff made unsuccessful objections to the offer of the written document, urging, a® he has again done before this court in argument and brief, that the instrument in question is null and void, Che document, that is clause ”3” thereof, olaimed by plaintiff to.be a nullity under the law^ and jurisprudence of Louisiana, reads as follows:

"11 IS EURIHER AGREED that this Company-does not in any manner guarantee the preservation of property stored or the maintenance of temperature where stored, unless a special contract in writing be made'identified with this receipt and noted hereon, in which case goods will be inspected and examined at the cost of the atorer, and the goods then stored at contract temperattoe and preservation guaranteed, provided that in case of accidents or fortuitous events, as stated in paragraph 2, that said Company shall have like right to terminate the contract, and all claims or reclamations for damages or otherwise, shall be made by said storer within 24 hours after the repossession of goods.
And the Company further reserves the right to refuse to enter into such special contracts, either for goods stored or otherwise."

Seo. 3 - part X of Act 221 of 1908 provides:

"Porm of Receipts - What Terms Kay Be Inserted: A warehouseman may insert ' in a receipt issued by him any other terms and conditions, provided that such terns and conditions shall not -
(a) Be contrary to the provisions of this Act;
(b) In any wise impair his obligation to exercise that degree of care in the safe-keeping of the goods entrusted to him which a reasonably careful man would exercise in regard to similar goods of his own."

It is argued by counsel for plaintiff that the above provision of the law governing warehouse receipts, defining warehousemen and fixing their qualifications and duties, etc., is an express prohiDition against the insertion of such a clause as clause "3" above quoted. In support of this contention, we are referred particularly to the case of llarx at al v. Hew Orleans Cold storage Company, 107 la. 172.

Before discussing the cited authority which we have had repeated occasion to examine, we would observe that v/9 find nothing in the language of clause "3" of the contract which could be said to fall within the prohibitions of Sec. 3 of Act 221 of 1908, This Section of the Act should be read and construed with 3ec. 21 of the same Act which provides:

PART II.

OBLIGATIONS AHP RIGHTS 0? hARBHOJSEKBIT UPON TEKCR RECEIPTS.

3eotloa 21. - liability for Care of Goods.

"A warehouseman shall be liable for any loss or injury to the goods caused by his failure to exeroise such care in regard to them as a reasonably careful owner of similar goods would exeroise, bui, he shall not be liable, in the absence of an agreement to the contrary/for any loss or injury to the goods which could not have been avoided by the exercise of such care."

Most careful analysis of the opinion in M&rx et al v. H.O. Gold Storage Company does not bring us in aocoru with plaintiff's contention that the Supreme Court has he.'" that such olauses as either Clause "3" nor/ under consideration, or the somewhat similar clause "or heading"-found in the contract then under the court's review, are contractual provisions, oontra boryjfmores, and therefore prohibitory. We have no such understanding of either the statute or Jurisprudence. She above decision of the. Supreme Court though rendered long prior to Act 221 of 1908, naa not. in our opinion, been qualified by the provisions of the later statute. The opinion of the Court was based not upon conclusions of law that the contract in question was unlawful, and therefore null and void, but upon the facts found by the Court that the defendant, the H.O. Cold Storage Company, haá received, to its own knowledge, a greater quantity of peas than it could safely admit at one time into its cold storage. On this point the Court said;

"We can explain the deterioration of the peas in no other way than by assuming that the superintendent was not cautious enough and did "endanger" the temperature of his cold storage by letting in the peas too fast, or in too great quantities."

It was al30 noted by the Court that the defendant in that case had been sued on its general liability as a cold storer and had answered by a general denial not pleading, as in the case now before us, any special contract, proceeding then to a discussion of the limited liability clause found in the defendant's printed warehouse receipt and which plaintiff in the instant case claims to be similar to the contract now before us, the oourt ventured the opinion that if such a clause liad been specially pleaded it viould not have relieved the cold storer from its obligations to preserve the goods in the condition in which they were received. It cannot be said that beoause of the court's declaration that it is the duty of a cold storer "to poreserve the goods in the condition in winch they were received" that tin clause then under consideration was null and void and not enforceable betveen the parties. Upon re-hearing, the Oourt in its opinion adhered to its former ruling, except as to certain allowances for storage fees, and poroeeeded to say:

"Our decision found that the heaps of peas were too large, ahd that the defendant did not sufficiently look after the ventilation of the cold air it controls. After a re-examination, we are not satisfied that an error has been committed. Defendant places great reliance upon the receipt it gave for the peas and the limited liability clause printed therein. He understand that the defendant can limit its liability, and that those who sign the limited clause will be bound by its terras. But in this case oversight and negligence have been found, which are not covered by the limited liability clause of the receipat, and-from which v*e do not understand from the testimony, that it ever w;a3 the intention to relieve the defendant. Certainly the language usod leads to such inference.
One may stipulate waiver-as extensive as he pleases, provided it does not contravene rules and laws enacted on grounds of publio policy» Ihe waiver must express the full extent intended."

In the ease before us clause "1" of the contract reads as follov/s:

"1 - It is agreed between the parties hereto that said. Company has not incpjected nor examined the condition of tbs goods below described,is not bound by the contents marked, nor for damages already sustained."

plaintiff in this cause has failed to assume the burden of proof which is entirely his, by not showing conclusively that the egg yolks when deposited were in good condition, or that the defendant failed by insufficient temperature or other wise to preserve the goods in the condition in vhieh they were received.

It is therefore ordered, adjudged and decrees., that the judgment appealed from be and tte same hereby is affirmed at plainxi'ff's cost in both courts.

JÜD&iaag ¿fffflRIEh.

June 19th, 1922  