Brown v. Sloan's Moving & Storage Co.

• Decision Date: 13 December 1954
• Docket Number: No. 44303,No. 1,44303,1
• Citation: 274 S.W.2d 310
• Court: Missouri Supreme Court
• Parties: Wilbur G. BROWN and Patricia Parker Brown, Plaintiff-Appellants, v. SLOAN'S MOVING & STORAGE COMPANY, a Corporation, Defendant-Respondent

Page 310

274 S.W.2d 310

Wilbur G. BROWN and Patricia Parker Brown, Plaintiff-Appellants, v. SLOAN'S MOVING & STORAGE COMPANY, a Corporation, Defendant-Respondent.

No. 44303.

Supreme Court of Missouri, Division No. 1.

Dec. 13, 1954.

Motion for Rehearing or to Transfer to Court en Banc Denied

Jan. 10, 1955.

Jones, Hocker, Gladney & Grand, Harold C. Gaebe, Jr., St. Louis, for appellants.

Sievers, Reagan & Schwartz, St. Louis, for respondent.

VAN OSDOL, Commissioner.

Plaintiffs, Wilbur G. and Patricia Parker Brown, instituted this action to recover $19,665.20 alleged to have been the value of personalty stored by them in the warehouse of defendant, Sloan's Moving & Storage Company, which warehouse, situate at 1167-69 Hodiamont Avenue in St. Louis, was destroyed by fire January 15, 1951. At the conclusion of plaintiffs' case the trial court directed a verdict and entered judgment for defendant. Plaintiffs have appealed.

In this case wherein plaintiffs-depositors' property was destroyed by fire while stored in defendant-warehouseman's warehouse, we have the question, among others, of the effect of the Uniform Warehouse Receipts Act, Section 406.010 et seq. RSMo 1949, V.A.M.S., particularly Sections 406.090 and 406.210 thereof, upon the 'burden of proof' on the issue of the ware-houseman's negligence.

Plaintiffs had filed a petition in four counts, but voluntarily dismissed their Count II.

By Count I, plaintiffs alleged the delivery of their (household) goods to defendant for storage and their receipt of defendant's warehouse receipt. Plaintiffs also alleged their payment for the storage and their performance of the bailment contract in all respects. They also alleged they had made repeated demands, and that defendant had failed and refused to deliver the property or its reasonable value.

In Count III plaintiffs incorporated those allegations of the paragraphs of Count I pertaining to the contract of bailment, its performance by plaintiffs, and their demand and defendant's failure or refusal to deliver the property, and further alleged as follows,

'2. On or about June 20, 1950, defendant by and through its agents, represented by means of a printed statement and photograph of a building on its business letterhead that it maintained a 'New, Modern Storage Warehouse.' Said defendant also represented by means of advertisements in the Greater St. Louis Telephone Directory for November, 1949, that it maintained 'Bonded Storage, Fireproof, Sprinkled Warehouse, Low Insurance Rates'; * * *.

'3. Plaintiffs in reliance upon the above mentioned representations of defendant entered into a contract of storage with said defendant and delivered up their goods and furnishings to defendant under the assumption that said goods and furnishings would be stored in a building warehouse that fit the description of said representations.

'4. Defendant with present knowledge of the existence of another warehouse located at 1167-69 Hodiamont Avenue, * * * which did not correspond to said representations nevertheless allowed plaintiffs herein to remain uninformed as to that fact and as to defendant's then present intention not to store said goods and furnishings in accordance with its representations but rather to store the goods in the warehouse at 1167-69 Hodiamont Avenue, * * * which in fact was not a new modern fireproof and sprinkled warehouse and which in fact did burn causing the loss of plaintiffs' goods and furnishings herein-above mentioned. * * *'

By their Count IV plaintiffs again incorporated the paragraphs of Count I stating the bailment contract, its performance by plaintiff, and defendant's failure and refusal to return the property on plaintiffs' demand, and further alleged as follows,

'2. On or about January 15, 1951, plaintiffs' goods and furnishing were destroyed by fire while stored in defendant's warehouse located at 1167-69 Hodiamont Avenue, * * * said destruction by fire being the direct and proximate result of negligence and carelessness on the part of defendant in failing to exercise its duty of ordinary care in the following respects, to-wit:

'(a) Defendant stored Plaintiffs' goods and furnishings at its warehouse at 1167-69 Hodiamont Avenue, * * * when said warehouse was a building unsuited for the safe storage of said goods in that said building was of old construction with a wooden second floor and said building was without adequate fire walls, fire doors and fireproof partitions to prevent the rapid spread of fire throughout the said building; said building warehouse was also without adequate fire protection in that it had no sprinkler system or automatic fire warning devices.

'(b) Defendant permitted the storage of automobiles and trucks with attendant inflamable materials in said building warehouse without adequate fire protection and in violation of the Revised Code of the City of St. Louis, Building Code, Section 489, which provides that separation walls and fire doors of specified construction be maintained between an area used as a public garage and an area of normal hazard.

'(c) Defendant failed and neglected to provide a watchman in and around said warehouse to prevent and discover the outbreak of fire.

'(d) Defendant failed and neglected to provide adequate fire protection so that said fire could have been discovered and extinguished before it had caused the complete loss of said building warehouse and plaintiffs' goods and furnishings stored therein. * * *'

Answering Count I of the petition, defendant alleged inter alia that plaintiffs' goods were destroyed and damaged in defendant's Hodiamont Avenue warehouse by fire of unknown origin; and defendant denied generally the allegations of misrepresentation and negligence respectively stated in plaintiffs' Counts III and IV.

Plaintiffs introduced evidence tending to show they had stored their property (it seems the property actually belonged to plaintiff wife) with defendant pursuant to a storage order dated June 20, 1950, signed for plaintiff wife, 'per E. Nebbitt,' the storage order reciting that the property was to be stored at defendant's warehouse at 1167 Hodiamont. Defendant's warehouse receipt was delivered to plaintiffs by enclosure in defendant's letter, July 12th. Plaintiffs fully paid all storage and other charges made by defendant in connection with the property stored. January 18, 1951, plaintiffs received defendant's letter of January 16th notifying them that defendant's warehouse on Hodiamont had been destroyed by fire about midnight, January 15, 1951. Defendant conceded that plaintiffs had demanded delivery of the property or its value and that defendant had denied all liability. There can be no question but that plaintiffs' property was destroyed by fire, although there was evidence that a few articles of more or less trivial value were salvaged.

As stated, defendant had alleged the fire was of unknown origin, and plaintiff did not and apparently could not introduce or proffer evidence tending to prove the origin of the fire. The evidence offered by plaintiffs tending to support their allegations of negligence was rejected by the trial court. Defendant did not introduce evidence tending to show the circumstances in which plaintiffs' property was destroyed or any evidence on which it could have been reasonably found that no negligence of defendant was a proximate cause of the loss.

Attending the Contention of Error of the Trial Court in Directing a Verdict as to Counts I and IV

Under the Uniform Warehouse Receipts Act, which of the parties, plaintiffs or defendant, had the burden of proof as to the issue of negligence?

In so far as we have been able to ascertain, the St. Louis Court of Appeals has rendered the first decision in Missouri treating with the Uniform Warehouse Receipts Act with respect to the effect of the Act upon the burden of proving the warehouseman's negligence. Gutknecht v. Wagner Bros. Moving & Storage Co., Mo.App., 266 S.W.2d 19 (see also Fry v. Wagner Bros. Moving & Storage Co., Mo.App., 267 S.W.2d 359, and Cook v. Sloan's Moving & Storage Co., Mo.App., 267 S.W.2d 362). By an ably written opinion in the Gutknecht case, that Court decided that Sections 8 and 21 of the Act, respectively Sections 406.090 and 406.210, RSMo 1949 V.A.M.S., 3 U.L.A. Secs. 8 and 21, changed the common law rule as recognized in our Missouri cases, and that the burden of proof is now on defendant on the issue of a defendant-warehouseman's negligence vel non in those cases where a plaintiff's claim is based on the bailment contract; but that, where a plaintiff's action is on negligence, the Act does not affect our common law rule that the burden of proving a defendant-warehouseman's negligence is on a plaintiff-depositor. In expressing the opinion that the common law rule had not been changed by the Act (in those cases in which a claim is based on negligence) the St. Louis Court of Appeals relied principally on the case of Traders' Compress Co. v. Precure, 107 Okl. 191, 231 P. 516, 523. In that case--in a well-considered opinion--the Supreme Court of Oklahoma said, 'We are not in accord with the views of those courts holding that where recovery is sought, based on the negligence of the warehouseman, the statute has changed the rule as to the burden of proof, for the reason that the statute under consideration deals only with the rights, duties, and liabilities of the parties under the contract of bailment as embodied in the warehouse receipt. The act does not deal with the burden of proof in actions sounding in tort, or with the law of negligence, and nowhere evinces an intention on the part of the Legislature to in any manner modify the rules at common law in cases founded on negligence.' See now the Annotation 13 A.L.R.2d 681, at page 692, for other cases recognizing a distinction based on the forms of action with regard to the effect of the Act upon the burden of proof. But also examine George v. Bekins Van &...