Bellows v. Worcester Storage Co.
| Decision Date | 02 April 1937 |
| Citation | 7 N.E.2d 588,297 Mass. 188 |
| Parties | ETHEL M. BELLOWS v. WORCESTER STORAGE COMPANY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
September 22, 1936.
Present: RUGG, C.
J., CROSBY, FIELD DONAHUE, & LUMMUS, JJ.
Warehouseman. Evidence, Presumptions and burden of proof, Extrinsic affecting writing, Competency.
Contract, In writing. Negligence, Warehouseman, Bailee. Proximate Cause.
A contract in writing with a warehouseman providing for storage of goods in a certain warehouse which was not fireproof superseded a previous oral agreement under which the goods were to be put in another warehouse which was fireproof, and evidence of the oral agreement was rightly excluded.
In the absence of a demand under G. L. (Ter. Ed.) c. 105, Section 15, the burden of proof, in an action of tort against a warehouseman for loss of goods, was on the plaintiff to prove negligence of the defendant causing the loss.
A warehouseman was not liable for the loss of goods stored with it caused by a fire deliberately set inside his warehouse by a person who had wrongfully entered through a defective door; the possible negligence of the warehouseman in failing to repair the door was not the proximate cause of the loss.
CONTRACT OR TORT. Writ in the Superior Court dated March 22, 1934. The action was tried before O'Connell, J., who, after the recording of a verdict for the plaintiff in the sum of $609.80, ordered entered a verdict for the defendant under leave reserved. Both parties alleged exceptions.
H. H. Hartwell, (R.
W. Lewis with him,) for the plaintiff.
A. Houghton, (C.
W. Wood with him,) for the defendant.
This is an action of tort for alleged negligence causing the loss by fire of household furniture and household goods stored in the Madison Street warehouse of the defendant. The jury returned a verdict for the plaintiff. On leave reserved under G. L (Ter. Ed.) c. 231, Section 120, the judge entered a verdict for the defendant, subject to the exception of the plaintiff. The main question is, whether the evidence warranted a verdict for the plaintiff. If it did not, the exception of the plaintiff to the refusal of the judge to give to the jury a requested instruction concerning the measure of damages becomes immaterial.
The remaining exception of the plaintiff may be disposed of at the outset. She introduced an envelope furnished by the defendant evidently for the keeping of the warehouse receipt. On the back of the envelope were printed the words, evidently descriptive of one service rendered by the defendant "Storage of Household Goods in Fireproof Buildings." She offered to prove that when the goods were stored it was orally agreed that they would be put in the fireproof warehouse of the defendant on Pleasant Street. But it was conceded that "some time" after the goods were actually stored in the Madison Street warehouse, which was not fireproof, the defendant mailed to the plaintiff in duplicate a warehouse receipt in a form constituting a written contract intended for the signatures of both parties. See G. L. (Ter. Ed.) c. 105, Section 9. The defendant had already signed. The plaintiff, after reading the printed words on the back of the envelope, signed the contract and returned it to the defendant.
The contract plainly showed that the goods were stored in the Madison Street warehouse. It is clear that the parties put their contract into a written form, by which both are bound. The judge was right in excluding the offered evidence.
The decisive question is whether there is evidence of negligence of the defendant which caused the loss of the goods by fire.
The Madison Street warehouse was not fireproof, but was of "second class, slow burning, mill construction." It was three stories in height, with outer walls of brick thirteen inches in thickness. The interior was of heavy timbers, with wooden floors and partitions. The building had been built nearly thirty years before for use as a storage warehouse. There were forty-two windows, each provided with a tightly fitting wooden shutter covered with sheet metal. These shutters were closed and fastened strongly at the time of the fire, except for a few that by arrangement with the fire department were left lightly fastened so that firemen could get in if necessary. There was no night watchman, no sprinkler system, and no burglar alarm. There was, however, an approved fire warning system, operated by electricity, consisting of wires along the ceilings with devices that would cause a short circuit, a ringing gong on the front of the warehouse, and a signal in the office of the American District Telegraph Company, in case the temperature should rise to one hundred forty-five degrees Fahrenheit. The wires of this system ran through an instrument enclosed in a wooden case with a glass door in the office of the warehouse. The key to this case was in the lock. There was a fire department station less than a quarter of a mile away. There was a loading door and another door in the front of the warehouse, and another loading door in the rear. At the time of the fire in question, the gate at the street line was not locked, and anyone could walk around to the rear of the warehouse. There was also a part of the rear line of the lot unfenced, and anyone could have reached the rear of the warehouse over the lands of others.
The doorway at the rear of the warehouse was nine feet in height and in width, and its bottom was two and one half feet above the ground. The door was a little larger than the doorway. It was equipped on the top with wheels which ran on a metal track, so that the door could be pushed to one side, clear of the doorway. The door was blocked so that it could not be pushed inward as a whole. The door was securely locked at the time of the fire. The frame of the door was of pine, two and one fourth inches thick. There were six stiles and montants, from five and one half to seven inches wide. There were three rails, from seven to eleven inches wide. The foregoing showed on the outside of the door, and gave it the appearance of being panelled. Well nailed to this frame, on the inside, were tongued and grooved or "matched" boards, three fourths of an inch thick.
One Jewell, a muscular truckman of forty years, had frequented the warehouse for ten years, and knew it inside and out. He had the reputation of being honest, faithful and efficient. About eighteen months before the fire, the tailboard of his truck was accidentally backed into the rear door of the warehouse, loosening the matched boards and splitting two of them, in one of the lower panels, which panel was twenty-six inches in height and fourteen and one half inches in width. He helped the defendant's manager push the boards back in place. Thereafter, a person in the darkened warehouse looking at the door toward the daylight outside, could see two cracks in the matched boards of that panel, about ten inches long and one sixteenth of an inch wide, through which light showed. From the outside there was nothing to indicate upon ordinary observation any weakness in the door.
About six months before the accident to the door, Jewell had suffered a fracture of the skull and an injury to the neck. Later he "had trouble with his head." For two weeks before the fire he had been drinking heavily, and during that period he had set a number of fires in different buildings, as he testified at the trial. But there is no evidence that any of these facts were known to the defendant or anyone else. So far as the bill of exceptions shows, his high reputation remained unimpaired. Shortly after the fire, however, he was arrested, examined by physicians, and confined in State institutions for the insane for four or five months before being discharged.
About nine o'clock on Saturday evening, February 24, 1934, when the temperature was at zero Fahrenheit or lower, and two or three feet of snow lay on the ground, Jewell was walking by the warehouse, and noticed that the gate was open. He remembered the injury to the door, and decided to try to get into the warehouse. He waded through the snow to the rear door. He applied his shoulder and his hands to the damaged panel until he made an opening that would admit him. Once inside, he went to the boiler room, where he remained a considerable time. He was in the warehouse in all about three hours. Going to the office, he removed all papers from the desk and threw them on the floor. He opened the door of the case containing the instrument of the fire warning system, and by pulling out some of the wires disabled it. He then lighted a match, set fire to the papers, and went out through the same opening by which he had entered.
The fire was discovered a few minutes later, and the fire department was summoned. The firemen were unable to reach the shutters that could have been opened easily, for the snow and ice caused the ladders to slip, and a down draft brought the smoke around them and made it dangerous to be up on the ladders long. The shutters that were more easily accessible were fastened too securely to be opened. The inability to open the windows impeded the firemen in fighting the fire. But if they could have been opened it is problematical whether the goods could have been saved. The warehouse burned almost completely, and the goods were destroyed.
G. L. (Ter.
Ed.) c. 105 Section 27, provides: "A warehouseman shall be liable for any loss or injury to the goods caused by his failure to exercise such care in regard to them as a reasonably careful owner of similar goods would exercise; but not, 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." The statutory rule...
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