Danko v. Lewy, 11261.

• Decision Date: 11 May 1945
• Docket Number: No. 11261.,11261.
• Citation: 149 F.2d 66
• Parties: DANKO v. LEWY.
• Court: U.S. Court of Appeals — Fifth Circuit

149 F.2d 66 (1945)

DANKO v. LEWY.

No. 11261.

Circuit Court of Appeals, Fifth Circuit.

May 11, 1945.

Harold Cox, of Jackson, Miss., for appellant.

Landman Teller and R. M. Kelly, both of Vicksburg, Miss., for appellee.

Before HOLMES, McCORD, and WALLER, Circuit Judges.

McCORD, Circuit Judge.

George Danko sued Ernest B. Lewy as a warehouseman on an oral contract of bailment for the recovery of damages for the loss of household effects which were destroyed by fire in the warehouse on September 15, 1943. The suit was for the amount of $4,343.50, and the jury returned a verdict for the plaintiff for $2,000. Thereupon Lewy moved for a judgment notwithstanding the verdict, and in the alternative, for a new trial. The motion for a new trial was overruled. The motion for judgment notwithstanding the verdict was sustained. Plaintiff has appealed.

The important facts disclose that on May 3, 1943, the plaintiff, George Danko, stored his household effects in the defendant's warehouse at Greenville, Mississippi. Danko was a lieutenant in the Army Air Force and was ordered to report for duty at the Jackson Army Air Base. He delivered his property to the warehouse in the late afternoon of May 3 to one Taylor, who was the manager of the establishment. Taylor advised Danko that the storage charges would be $6.12 per month, and this amount was paid for the ensuing month. Taylor was advised that plaintiff wanted $5,000 of fire insurance on his property, and he agreed to secure this insurance for plaintiff and such coverage was to continue as long as the property was stored in defendant's warehouse. The plaintiff agreed to pay the premium in addition to storage charges and Taylor assured him that he would secure this insurance protection. For the reason that it was late in the afternoon and there was a shortage of help, the warehouseman did not check plaintiff's furniture and give him a receipt for it at that time, but agreed to check the goods and mail plaintiff a list of same together with an insurance policy covering his effects. The warehouse was advertised in the telephone directory, in the city directory, and on the letterheads of the defendant as being fireproof.

On May 26, 1943, and after plaintiff had written twice for a list of the property, defendant mailed him a warehouse receipt which was dated May 3, 1943. This receipt was not accompanied by letter, and no insurance policy was enclosed with the list. Upon receiving the list plaintiff wrote and complained that the list furnished was incorrect and on June 11, 1943, the defendant acknowledged the letter and directed that certain articles which he had neglected to include were to be added to the list. On July 1, 1943, the plaintiff wrote again to the warehouseman inquiring about the insurance policy which he had failed to receive, but received no answer. On September 15, 1943, the warehouse burned and the property of plaintiff was destroyed.

The warehouse on the inside consisted of wooden shelves and considerable wood structure, and was burned out on the inside. A fire wall divided the main floor of the building and the door in this wall was left open and unprotected. The chief of police of Greenville testified as an expert witness and gave as his opinion that plaintiff's goods would not have been destroyed by fire if this opening had been protected by a door.

There is virtually no dispute that the claim for $4,353.50 was made in absolute good faith. This amount was not questioned until the case was brought to this court, and while this question may be raised at any time, it is clear that there is no merit in the jurisdictional question as to amount. Saint Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288, 289, 58 S.Ct....