Ballston Refrigerating Storage Co. v. Eastern States Refrigerating Co.

142 A.D. 135, 126 N.Y.S. 857, 1911 N.Y. App. Div. LEXIS 260

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 4, 1911
• Status: Published

Opinions

Kellogg, J.:

The findings establish, upon sufficient évidence, that the apples when teceived in storage in October were fancy No. 1 f ruit in good and sound condition, and when examined in February were in sound and proper condition; that when removed the fore part of April they were scalded, discolored, damp and in a damaged condition, which damaged condition was produced between February and April; that the necessary temperature for the preservation of apples is from thirty-one to thirty-two degrees Fahrenheit, uniformly maintained ; that such temperature was not maintained, but defendant allowed it to rise until it reached and continued for some period at thirty-four to thirty-six degrees, and on one occasion for some period to thirty-eight degrees; that the damaged and scalded condition of the apples was such as would be produced by a failure to maintain a uniform temperature at about the freezing ¡joint for a period of at least thirty-six hours; that á uniform temperature of about the freezing point can readily be maintained in a cold storage compartment, and that the damage was caused by the defendant’s negligence.

The defendant’s evidence suggests no reason "to account for the rapid decline of this fancy fruit between February and April. Its experts claim that such conditions sometimes appear in proper storage, and, are usually attributed to some defective condition of the apples when stored; but the findings repel the idea that these apple's were in such condition when received. Conceding the quality of the fruit in October and February to be as the referee finds it, the defendant’s experts are at a loss to account for its subsequent condition with proper storage. The defendant was charged with the duty of offering some reason for the damaged condition of this fruit, and, as found by the referee, has failed to, show that the injury to the apples did not happen in consequence of the failure to exercise due care. The other findings and the evidence exclude the supposition that it could have occurred otherwise. The fine condition of the fruit when received and when examined in February, and its changed condition in April, require the defendant to account for its rapid deterioration, and it failed to give any reason therefor. I find no evidence in the case justifying-the supposition that fruit stored in a perfect condition in October, and found in satisfactory condition in February, and properly cared for, may be in the condition disclosed here in April. From the express findings of fact it clearly appears that this damaged condition of the fruit cannot be accounted for except by the defendant’s negligence. If we assume that it is necessary to have a high temperature for thirty-six hours, we find .the excessive temperature and a condition of the fruit which can only be accounted for by continued high temperature for thirty-six hours. The only inference, therefore, is that the excessive temperature, found from timé to time, continued for over thirty-six hours.

The evidence fairly sustains the findings and compels the conclusion that the plaintiff’s damage was caused solely by the defendant’s negligence. The finding of defendant’s negligence, accompanied by the other findings, and the conclusions necessarily following from them,- fairly sustain the judgment. It should, therefore, be affirmed, with costs.

All concurred, except Cochrane, J., dissenting in opinion, in which Smith, P. J., concurred.