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09/23/87 Marvin Mueller Et Al., v. Edward Soffer Et Al.

September 23, 1987

MARVIN MUELLER ET AL., PLAINTIFFS-APPELLEES

v.

EDWARD SOFFER ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

513 N.E.2d 1198, 160 Ill. App. 3d 699, 112 Ill. Dec. 589 1987.IL.1411

Appeal from the Circuit Court of St. Clair County; the Hon. Sheila O'Brien, Judge, presiding.

APPELLATE Judges:

JUSTICE KASSERMAN delivered the opinion of the court. KARNS, P.J., and LEWIS,* J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KASSERMAN

Defendants, Edward Soffer and Larry Soffer, have perfected this appeal from an order of the circuit court of St. Clair County which entered judgment after a bench trial in favor of plaintiffs, Marvin Mueller and Vin-Mar Supply, Inc., and against defendants in the amount of $10,760 plus costs.

On April 11, 1985, plaintiffs filed a one-count complaint against defendants, alleging as follows: paragraph 1 alleged that prior to August 31, 1984, plaintiff delivered 1,034 railroad carts to defendants' warehouse for storage and safekeeping; paragraph 2 alleged that defendants had a duty to exercise ordinary care in regard to the storage and safekeeping of plaintiffs' property; paragraph 3 alleged that on August 31, 1984, a fire destroyed defendants' warehouse, including all of plaintiffs' carts, and that after the fire plaintiffs' carts had a salvage value of $9,409; and paragraph 4 alleged that on September 7, 1984, defendants carelessly and negligently instructed and allowed L.T.D. Contractors to remove plaintiffs' carts from defendants' property to plaintiffs' damage in the amount of $9,409. Before trial plaintiffs amended the prayer for relief to request $10,000 in damages.

In their answer, defendants admitted the allegations of the first and second paragraphs of the complaint but denied generally the allegations of the third and fourth paragraphs.

After a bench trial on November 26, 1985, the circuit court entered judgment in favor of plaintiffs in the amount of $10,760, plus costs. The court found that plaintiffs established a prima facie case of bailment and that defendants offered no evidence of their freedom from negligence. The parties have not raised any issue regarding the specific identities of either the plaintiffs or the defendants; therefore, we will refer to plaintiffs and defendants in the plural.

On appeal defendants contend: (1) that the plaintiffs failed to meet their burden of proving that defendants were negligent in failing to return the carts; (2) that the circuit court erred in finding that defendants offered no evidence of their freedom from negligence; (3) that the circuit court erred in failing to find that plaintiffs were contributorily negligent; and (4) that plaintiffs failed to prove damages to a reasonable degree of certainty.

The relevant facts are as follows: Marvin Mueller, president of Vin-Mar Supply, Inc., testified that in May 1984 he purchased 1,126 luggage carts, plus approximately two dozen broken carts, from Missouri Pacific Railroad for $7,500. Plaintiffs' exhibit No. 1 was an advertising flyer which Mueller prepared for use in marketing the carts. The flyer included a drawing of a cart, which appears to be similar to those typically used to move baggage, and stated it was a "heavy duty industrial cart," capacity 4,000 pounds, and was constructed of a steel frame and a solid oak bed. The carts were offered for sale for "$45.00 to $125.00 [each] depending on quantity and condition." Mueller testified that a cart weighed on the average 400 to 500 pounds. Mueller stated that he contacted Larry Soffer and made verbal arrangements to store the carts, for a fee, in defendants' warehouse, the old Dixie Mills Feed complex in East St. Louis. Mueller testified that he subsequently sold 50 of the carts, leaving "approximately a thousand."

On or about August 31, 1984, a fire destroyed defendants' warehouse. No evidence was presented as to the fire's nature, origin or cause. The entire building, part of which was six stories high, had collapsed into the basement. Edward Soffer, the owner of the warehouse, testifying as an adverse witness for plaintiff, stated that he saw the warehouse the day after the fire and it was "a gnarled up mess." The carts had been stored on the first floor, stacked on top of one another, three or four deep. Edward Soffer testified that he "didn't see anything that was recognizable." Due to pressure from the East St. Louis building commissioner, who insisted that the building debris be cleaned up immediately, Soffer promptly hired Charles Powell of L.T.D. Contractors , who began salvage work the second day after the fire. Soffer testified that he did not know anything about salvage value and that he did not give specific instructions to LTD concerning the cleanup. However, Soffer did identify a document which he signed at LTD's request, addressed "To Whom It May Concern," and which purported to give Edward Soffer's permission for LTD to remove salvage from the Old Dixie Feed Mill.

Mueller testified that he visited the scene one or two days after the fire, on a Saturday morning. He stated that the carts were "strewn around." Mueller took photos of the site, and the metal frame of one of the carts is clearly identifiable. Mueller further testified that he subsequently sent a letter to the Soffers and called Larry Soffer on the phone demanding return of the carts but that the carts were not returned and he was not paid for them. On cross-examination, Mueller testified that he met Charles Powell at the site that Saturday morning and that Powell and four or five men were salvaging bricks from the rubble. Mueller admitted that he did not instruct Powell not to touch any railroad carts. Mueller also testified further concerning his Saturday evening telephone call to Larry Soffer, stating that he confirmed that there had been a fire and that Soffer had said he was sorry. There was no other "major conversation." Mueller identified the letter sent to Larry Soffer, a "night letter" sent via Western Union. The telegram is dated September 14, 1984, demands return of all carts "in a salvage condition" and warns not to remove the carts from the property. Mueller estimated that it would have cost him $10,000 to remove his salvageable property from the rubble.

Joseph Bozada, of D & J Equipment Company, testified that he is in the business of heavy hauling, plant dismantling and buying and selling scrap materials. In spring 1984 Bozada hauled 1,126 freight carts, including good and bad carts, to defendants' warehouse, for which he was paid $6,250. He testified that he was at the scene of the fire when the fire was still smoldering. Bozada stated that the remains of the carts would be considered scrap materials. Bozada also testified that the market price for such scrap varied from $80 to $100 per ton and that "at the time like I told Mr. Vin-Mar you'd probably get a hundred dollars a ton." On cross-examination Bozada testified that he couldn't tell how ...


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