Ayres v. Crowley

• Decision Date: 05 July 1944
• Docket Number: 15660.
• Parties: AYRES v. CROWLEY et al.
• Court: South Carolina Supreme Court

30 S.E.2d 785

205 S.C. 51

AYRES v. CROWLEY et al.

No. 15660.

Supreme Court of South Carolina

July 5, 1944

Osborne Butler & Moore, of Spartanburg, for appellant.

J Davis Kerr, of Spartanburg, for respondents.

BAKER Chief Justice.

The appellant and the respondents are dealers in cotton waste products, the appellant having his place of business at Greenville, and the respondents having their place of business at Spartanburg, where in addition to their waste cotton business, the respondents maintained a large warehouse of cotton storage type, and were engaged in the business of public warehousemen.

On November 21, 1942, appellant purchased from respondents a quantity of cotton waste, then belonging to respondents, and in their warehouse. This waste cotton, with the exception of a portion which appellant had sold in the meantime, and two other lots of waste purchased from respondents by appellant on January 14, 1943, were destroyed on January 21, 1943, when respondents' warehouse burned.

Respondents duly gave notice to the appellant that storage charges on the lot of cotton waste purchased on November 21, 1942, would commence on the following December 1, and that storage charges on the two lots of waste purchased on January 14, would commence on January 18.

Following the destruction by fire of the respondents' warehouse and its contents, the appellant, upon ascertaining that the respondents did not carry any insurance for his benefit demanded that they pay him for his loss; and upon their refusal so to do, commerced this action.

The complaint alleged that respondents were engaged in the business of public warehousemen; that they gave no notice to appellant, "as they were required by custom and statute to do, that they had not insured or caused to be insured against loss or damage by fire plaintiff's (appellant's) said waste, as a consequence of which plaintiff (appellant) did not procure the insurance for the value of said waste, which he would have done if said notice had been given by defendants (respondents) as they were required by law and custom to do; that they did not give and file the bond as required by Section 7177 of the Code of Laws of South Carolina 1942; that the defendants (respondents) failed and neglected to give to the plaintiff (appellant) the receipt for such waste, required to be given by the provision of Section 7179 of the 1942 Code of Laws of South Carolina, and specifically failed and neglected to give to the plaintiff (appellant) a receipt, as required by said Section 7179, stating the amount and rate of insurance on such cotton waste so stored and warehoused, and failed and neglected to give to the plaintiff (appellant) such a receipt showing the amount of the bond required by Section 7177; said defendants (respondents) further failed and neglected to conform to the customs and usages prevailing in the waste trade generally and locally in Spartanburg and its vicinity with respect to the storage of cotton waste products, such as that herein referred to, by notifying plaintiff (appellant) that they had not procured and did not carry insurance affording protection against fire and covering the property of plaintiff (appellant) so stored and warehoused by defendants (respondents)." It further alleged a custom and usage which existed in the waste trade generally, and in Spartanburg and the vicinity thereof, "that where the cotton waste was purchased from a cotton waste dealer, such as defendants (respondents) are, and stored by such dealer in its warehouse that such dealer and warehousemen insure or caused to be insured such waste for the benefit of the purchaser and owner thereof against loss or damage by fire, or if such dealer and warehousemen procured no such insurance that dealer and warehousemen notify such purchaser and owner that dealer had not procured such insurance, so that the purchaser and owner thereof might procure insurance himself for his protection against loss or damage by fire."

The answer of the respondents admitted the purchase by appellant from them of waste cotton and its storage and destruction in their warehouse, when the warehouse burned and that no receipt was issued but denied any duty on their part to insure the waste cotton of appellant, or give him notice that it was not insured, and denied the custom and usage in the waste trade alleged in the complaint.

Upon a trial of the case, the trial Judge excluded all testimony as to the alleged custom and usage in the waste trade generally, and in Spartanburg and the vicinity thereof, and on the motion of respondents, at the conclusion of the testimony on behalf of appellant, granted a nonsuit.

From such order of nonsuit, this appeal is prosecuted, and appellant states the "Questions Involved" as follows:

"1. Are the defendants, as public warehousemen, liable for loss of plaintiff's cotton waste by destruction by fire because of their failure to furnish bond or to issue the receipt showing insurance in force, under a proper construction of Sections 7177, 7178 and 7179 of the 1942 Code?

2. Was evidence admissible to show a custom or usage in the cotton waste trade, as between a seller and a purchaser of waste, with regard to carrying insurance, where the waste was, and continued to be, stored in the seller's warehouse?

3. Was evidence admissible to show a custom or usage, among warehousemen storing cotton waste and their customers, as to carrying insurance on the customers' waste?

4. If either question 2 or 3 as to the admissibility of evidence be answered in the affirmative, was there evidence of a custom or usage which would, if found by the jury to be true, make the defendants liable for loss of plaintiff's waste?"

The complaint does not allege, nor was any testimony tendered to prove, negligence with reference to the fire. There is not the slightest suggestion that the fire was due to any negligence on the part of the respondents. Therefore, the line of cases such as Fleischman, Morris & Co. v. Southern Railway, 76 S.C. 237, 56 S.E. 974, 9 L.R.A.,N.S., 519; Albergotti v. Dixie Produce Co., 202 S.C. 357, 25 S.E.2d 156, and Kelley v. Capital Motors, S.C., 28 S.E.2d 836, are, if...