Denver Public Warehouse Co. v. Munger

• Decision Date: 09 May 1904
• Citation: 20 Colo.App. 56,77 P. 5
• Parties: DENVER PUBLIC WAREHOUSE CO. v. MUNGER. [*]
• Court: Colorado Court of Appeals

77 P. 5

20 Colo.App. 56

DENVER PUBLIC WAREHOUSE CO. v. MUNGER. ^[*]

Court of Appeals of Colorado

May 9, 1904

Appeal from District Court, Arapahoe County.

Action by H.O. Munger against the Denver Public Warehouse Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

T.H. Hood, for appellant.

Geo. F Dunklee (O.E. Jackson, of counsel), for appellee.

GUNTER J.

December 1898, appellee stored with appellant, who was conducting a public warehouse, a large number of boxes of apples. Certain of the apples were frozen during the February following, and for damages thus sustained appellee sued, had verdict and judgment, and therefrom is this appeal. The charge in the complaint was that appellant was negligent in caring for the apples, which charge there was evidence to support, and which charge the verdict of the jury sustained. For the purpose of discussion we are justified, therefore, in assuming that appellant was guilty of negligence as alleged.

1. The receipt given by the warehouseman, appellant, for the apples stored, had indorsed thereon "At owner's risk." It is contended by appellant that this provision of the receipt exempted it from liability for want of ordinary care in preserving the apples. In the absence of a special contract limiting their liability, warehousemen are ordinary bailees for hire, and as such bound only to common care and diligence, and liable only for want of such diligence and care. Schmidt v. Blood, 9 Wend. 268, 24 Am.Dec. 143, 145, and note. "As to warehousemen, it is also clear that they come within the general rule, and are bound only to take common and reasonable care of the commodity intrusted to their charge." Story on Bailments (8th Ed.) § 444. For loss or injury of a thing caused by the hired bailee's ordinary negligence or failure to bestow this ordinary or average care or diligence, he must respond. Such is the criterion in the absence of special modifying stipulations. Schouler's Bailments and Carriers (3d Ed.) § 101; Van Zile, Bailments & Carriers, §§ 203, 204. Contracts against liability for negligence are not favored by the law. In some instances, such as common carriers, they are prohibited as against public policy. In all cases such contracts should be construed strictly, with every intendment against the party seeking their protection. Crew v Bradstreet Co., 134 Pa. 1st, 19 A. 500, 7 L.R.A. 661, 19 Am.St.Rep. 681, 682; French v. Buffalo, N.Y. & Erie R.R. Co *43 N.Y. 108, 111, 112. Some of the authorities are that a contract cannot be made by the warehouseman absolving him from liability for the want of ordinary care. "But negligence in any degree being wrong, *** the better doctrine, supported by authority, would seem to be that a bailee cannot stipulate against liability for his own negligence." Am. & Eng.Ency. of Law, vol. 3 (2d Ed.) p. 750; Lancaster County National Bank v. Smith, 62 Pa. 47, 55. Some indication of the public policy of this commonwealth as to contracts of this nature is given by Const. art. 15, § 15 (section 505, Mills' Ann.St.1891), making it unlawful for any person, company, or corporation to require of its employés, as a condition of their employment, any agreement releasing such person, company, or corporation from liability on account of personal injuries received by reason of the negligence of such person, company, or corporation, and declaring such contracts null and void. In Carr v. Schafer, 15 Colo. 48, 55, 24 P. 873, 876, it was held that the law does not permit "a common carrier to contract against liability for his own negligence or that of his servants or employés." Transportation Co. v. Cornforth, 3 Colo. 280, 25 Am.Rep. 757; Union P. R.R. Co. v. Rainey, 19 Colo. 225, 34 P. 986. The warehouse here maintained seems to have been a public warehouse as defined by our statute. 3 Mills' Ann.St. § 4640i. In Minnesota Butter & Cheese Company v. St. Paul Cold-Storage Warehouse Company, 75 Minn. 445, 77 N.W. 977, 74 Am.St.Rep. 515, cheese was stored, and through the negligence of the warehouseman was injured. The receipt given by the warehouseman for the goods so stored contained, as a part thereof, "At owner's risk." It was contended that this provision of the receipt exempted the warehouseman from liability for the lack of ordinary care in the preservation of the cheese. It was held that such words did not protect against liability for the lack of ordinary care; that the law looked with disfavor upon a contract exempting the warehouseman from liability for the lack of ordinary care, and it would not so interpret the contract unless such were the express terms of the contract. The court, inter alia, said: "This receipt was issued by the defendant,...