Berger v. St. Louis Storage & Commission Co.

• Decision Date: 01 March 1909
• Parties: BERGER v. ST. LOUIS STORAGE & COMMISSION CO.
• Court: Missouri Court of Appeals

116 S.W. 444

136 Mo. App. 36

BERGER v. ST. LOUIS STORAGE & COMMISSION CO.

St. Louis Court of Appeals. Missouri.

March 1, 1909.

1. WAREHOUSEMEN (§ 24)—CONTRACTS FOR STORAGE—BAILMENT—OBLIGATIONS.

A contract by a warehouseman to return on demand property stored by the owner on payment of the charges is one of bailment, and the warehouseman must exercise such care as ordinarily prudent persons in that business are accustomed to exercise toward property placed in their custody, or in the care of their own property under similar circumstances.

2. APPEAL AND ERROR (§ 171)—REVIEW— THEORY OF CAUSE.

A party is bound on appeal by the theory of the cause he adopted on the trial.

3. APPEAL AND ERROR (§ 171)—REVIEW— THEORY OF CAUSE.

Where, in an action against a warehouseman for loss of goods, the cause was tried on the theory that the controversy only involved the amount of damages and the instructions given at the request of both parties adopted such theory, defendant on appeal could not complain because the court did not submit the question of its neglect to exercise ordinary care for the safety of the goods.

4. WAREHOUSEMEN (§ 34)—ACTIONS—BURDEN OF PROOF.

In an action against a warehouseman for loss of goods stored, plaintiff has the burden of establishing failure to exercise ordinary care for the safety of the goods.

5. WAREHOUSEMEN (§ 34) — ACTIONS — EVIDENCE —BURDEN OF PROOF.

Where an owner storing goods in a warehouse shows that he deposited goods in the warehouse in good condition, and that the warehouseman failed to deliver the goods on demand or delivered the goods in a damaged condition, a prima facie case of negligence of the warehouseman is established, and it devolves on him to show ordinary care and that the loss occurred through no breach of duty on his part.

6. TRIAL (§ 252)—INSTRUCTIONS—EVIDENCE.

Where, in an action against a warehouseman for loss of goods stored, plaintiff established a prima facie case which was not rebutted by any evidence of defendant, the failure of the court to submit to the jury the question of defendant's negligence was not reversible error, since such negligence was not an issuable fact.

7. EVIDENCE (§ 90)—"BURDEN OF PROOF"— "BURDEN OF INTRODUCING EVIDENCE."

The "burden of proof" is the duty resting on a party asserting the affirmative of an issue to establish it by a preponderance of evidence, which duty remains with him until the end of the trial, but, where such party makes a prima facie case, the duty of coming forward with evidence of sufficient weight to rebut it is shifted to the adverse party.

8. TRIAL (§ 205)—INSTRUCTIONS—BURDEN OF PROOF.

The court on request must charge that the burden of proof remains to the end with the party holding the affirmative of the issue sought to be established.

9. TRIAL (§ 219)—INSTRUCTIONS—REQUESTS— SUFFICIENCY.

It is not error to refuse a requested instruction containing the words "burden of proof," or "preponderance of the evidence," without explaining them, though the giving of such instruction is not prejudicial error.

Appeal from St. Louis Circuit Court; Robt. M. Foster, Judge.

Action by Philo Berger against the St. Louis Storage & Commission Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Johnson, Houts, Marlatt & Hawes, for appellant. Robert & Robert, for respondent.

NORTONI, J.

This is an action for the value of several carpets totally lost to the plaintiff, and for damages alleged to have accrued to numerous articles of furniture while stored in the defendant's warehouse. Plaintiff recovered, and defendant appeals. The defendant, a warehouseman, conducts a storage business for hire. Plaintiff stored her carpets and furniture with it, and paid the fee therefor. Upon applying for redelivery of the goods, the carpets could not be found, and it appears several articles of her furniture had been greatly damaged. The defendant warehouseman is a bailee, and the contract, being for the return of specific articles stored upon demand of plaintiff, was one of bailment. 30 Amer. & Eng. Ency. Law (2d Ed.) 42; McCabe v. McKinstry, 5 Dill. (U. S.) 509; Fed. Cas. No. 8, 667; Pribble v. Kent, 10 Ind. 325, 71 Am. Dec. 327. The obligation of the warehouseman bailee in such circumstances is to exercise ordinary care to protect the property intrusted to him; that is, to use such care and diligence looking to its safety as ordinarily prudent persons in that business are accustomed to exercise toward such property or in the care of their own property under similar circumstances. Ducker v. Barnett, 5 Mo. 97; Holtzclaw v. Duff, 27 Mo. 392; Gashweiler v. Wabash R. R. Co., 83 Mo. 112, 53 Am. Rep. 558; Stanard Milling Co. v. White Line Transit Co., 122 Mo. 258, 26 S. W. 704; Bush v. St. L., etc., Ry. Co., 3 Mo. App. 62; 30 Amer. & Eng. Ency. Law (2d Ed.) 46. It seems from the instructions given the court did not submit to the jury the question of defendant's neglect in respect of its obligation to exercise ordinary care for the safety of the goods. It is therefore insisted the judgment should be reversed for the reason the court did not require the jury to find the plaintiff's loss occurred through defendant's negligence. Under ordinary circumstances this argument would be persuasive and sound indeed. Not so in this particular instance, however; and this for the reason that defendant's negligence seems to have been conceded on the trial. Both parties requested instructions on the theory that an absolute liability existed against the defendant in case the plaintiff's loss occurred. That is to say, the plaintiff and defendant alike omitted to request the court for a charge to the effect that the plaintiff could recover only in event her loss occurred through the negligence of defendant or its servants.

In order to show the theory adopted by the parties at the trial, we copy the instructions given by the court touching the matter with respect to the loss of the carpets complained of. For the plaintiff the court instructed as follows: "The court instructs the jury that it is admitted by the defendant that on or about the 16th day of October, 1905, the plaintiff delivered to the defendant certain carpets and rugs for storage, and that the defendant lost the same and failed to return the same to the plaintiff on demand, and your verdict must be for the plaintiff on the first count of plaintiff's petition." For the defendant, and at its request, the court instructed as follows: "The court instructs the jury that, if you find from the evidence that the three carpets and rugs were lost or stolen, you are to return a verdict in favor of the plaintiff and against the defendant for the fair and reasonable amount said carpets and rugs were worth at the time they were demanded." As to the other items, the instructions disclose the parties proceeded upon the same theory. It is obvious from the instructions above quoted that both parties participated in requesting the court to submit the case upon the theory of an absolute liability resting upon the defendant to account for the goods in case of their loss or damage without regard to the question of neglect or care. Of course, the defendant is bound by the theory it adopted on the trial, and will not be permitted to predicate reversible error here on the failure to instruct that its obligation was one of ordinary care when its counsel had requested the court to instruct on the theory of an absolute liability. However this may be, from a careful reading of the entire record, it appears the defendant's negligence was practically conceded in the trial court for the reason it in no manner sought to show the exercise of ordinary care on its part. The counsel nevertheless urge an argument to the effect that it devolved upon the plaintiff to establish defendant's negligence by competent proof, and that, until this was done, there was no obligation on the defendant to introduce evidence tending to show the exercise of...