Dohrmann Hotel Supply Co. v. Owl Transfer & Storage Co.

• Decision Date: 30 November 1943
• Docket Number: 29086.
• Citation: 143 P.2d 441,19 Wn.2d 522
• Court: Washington Supreme Court
• Parties: DOHRMANN HOTEL SUPPLY CO. v. OWL TRANSFER & STORAGE CO.

143 P.2d 441

19 Wn.2d 522

DOHRMANN HOTEL SUPPLY CO. v. OWL TRANSFER & STORAGE CO.

No. 29086.

Supreme Court of Washington

November 30, 1943

Department 1.

Action by the Dohrmann Hotel Supply Company against the Owl Transfer & Storage Company to recover for damages to goods delivered to defendant as common carrier for delivery to the Army Engineers Corps in Seattle, Wash. From a judgment for defendant, plaintiff appeals.

Affirmed.

Appeal from Superior Court, King County; Ford Q. Elvidge, Judge Pro tempore.

Preston, Thorgrimson, Turner, Horowitz & Stephan of Seattle, for appellant.

Brethorst Holman, Fowler & Dewar, of Seattle, for respondent.

JEFFERS Justice.

This action was instituted by the Dohrmann Hotel Supply Company, a corporation, against Owl Transfer & Storage Company, a corporation, in the superior court for King county, to recover the reasonable replacement cost and value of certain goods delivered to defendant as a common carrier, and alleged to have been negligently damaged by defendant.

The complaint, in substance, alleged that the defendant was operating as a common carrier of freight (local cartage) in the city of Seattle; that on or about October 10, 1941 plaintiff delivered into the care and custody of defendant as a common carrier of freight, and defendant, for compensation, accepted as a common carrier of freight, certain goods, wares and merchandise for delivery to the Seattle Quartermaster Depot, Port of Embarkation, 1518 South Alaskan Way, Seattle, Washington; that while such goods were in the custody of defendant, and prior to delivery to pier A, the goods were negligently damaged by defendant, and became a total loss; that because of the damaged condition of the goods, the United States government refused to accept delivery of them, and plaintiff was compelled to, and did, replace them in fulfillment of its contract with the United States government.

Defendant, by its answer, admitted the allegations of the complaint, except the allegations that the goods were damaged prior to their delivery at pier A by defendant, that the goods were negligently damaged by defendant, and that they were a total loss, and the allegation as to the claimed replacement costs, which allegations defendant denied. Defendant alleged affirmatively that at the time plaintiff's goods were damaged to some extent unknown to defendant, by chemicals used in extinguishing a fire in defendant's warehouse, defendant had ceased to act as a common carrier, and was, for the sole benefit of plaintiff, acting as a gratuitous bailee of plaintiff's goods.

Plaintiff, by its reply, denied the affirmative matter contained in defendant's answer.

The facts in this case are not in dispute, and may be stated as follows: About three-fifteen o'clock on the afternoon of October 10, 1941, Perry McNeely, shipping clerk for plaintiff, called defendant's dispatcher, and told him that plaintiff had a shipment of goods for the United States Army Engineers, to be put on the dock immediately. In answer to the call, defendant sent one of its large trucks, in charge of a Mr. O'Bryon, to plaintiff's shipping rooms, which are located at the corner of Fifth avenue and Virginia streets. The truck arrived about four o'clock, and the goods were loaded, this operation consuming about forty-five minutes. As soon as the goods were loaded, the driver of the truck proceeded immediately to pier A, where he arrived about six o'clock. Upon his arrival at pier A, Mr. O'Bryon presented his papers to the United States Engineers department, which refused to permit him to unload the goods at pier A, directing him to deliver the goods to the Alaska Steamship Company's dock. The driver proceeded immediately to the last named dock, but arrived there too late, as the dock had been closed for the day. Mr. O'Bryon then called Julius Daverso, president of defendant company, and told him what had happened. Mr. Daverso attempted to call plaintiff on the telephone, but plaintiff's place of business was closed, so Mr. Daverso told the driver to take the goods to their garage at 912 Dearborn street. This garage was a frame building with a concrete floor, and had been under lease and used by defendant for a period of from four to six months.

Mr. Frank Daverso, secretary of defendant, was the last man to leave the building the morning of the fire. He had been incharge of the loading of three trucks with merchandise belonging to McKesson-Robbins, for Alaska shipments. These three trucks came into the garage about twelve-thirty a. m., October 11th. On the back of one of them were three boxes marked 'acid,' and on the boxes was a sign 'inflammable'. Mr. Daverso testified that after these McKesson trucks had been driven into the garage with their loads, he went out and locked the door; that at that time everything looked safe, and he was the last man to leave the garage. He testified that he was in personal charge of the loading of the McKesson trucks, and that there had been no smoking while they were being loaded. There is no testimony that there was any smoking on or about these trucks at any time.

About one-thirty, or about an hour after Mr. Daverso had left the garage, he was called by the police department and informed that the garage was on fire. Mr. Daverso went to the garage immediately, and upon arriving there found that some of the trucks had been driven out of the building on their own power, among them the truck loaded with the McKesson goods, upon the back part of which was the acid. There was some fire on this truck, and the canvas top and lattic work had been burned off, but aside from scorching, the truck was not damaged and there had been no fire about the cab. There had been fire in one of the other trucks which stood alongside the McKesson truck, but that fire had been extinguished. The fire in the McKesson truck was apparently in the back end. There had been some fire in the rafters and roof of the building immediately over the McKesson truck.

The truck loaded with plaintiff's goods was parked immediately back of the McKesson truck upon which the acid was loaded. It does not appear that the fire was actually communicated to the truck upon which plaintiff's goods were loaded. Mr. Julius Daverso testified that in his opinion the damage to plaintiff's goods was caused by some chemical used by the firemen, as the goods looked stained. There was no testimony that the goods were otherwise damaged.

There was no testimony that there had been any accident in the movement of the McKesson trucks, either Before or after they were driven into the garage. There is no testimony that anyone knew where or how the fire started, other than as may be inferred from the foregoing facts.

The goods in question were delivered to defendant as a common carrier, and accepted by it as such, to be by it delivered to the consignee at pier A.

Mr. McNeely testified that he knew the Alaska Steamship Company's dock closed at six o'clock, and that trucks had to be in line there at three p. m., to have their papers examined, but that he did not know there was any time limit at the army dock, pier A.

The following stipulation, signed by counsel for the respective parties, was filed in the cause prior to the making and entry of the findings of fact, conclusions of law and judgment:

'It is hereby stipulated by and between counsel of the respective parties that the record may be supplemented as follows:

'That the shipment in question, after loading, was immediately taken to the United States Engineers' Department at Pier A; that the Engineers' Department refused to permit the shipment to be unloaded there but directed the defendant to deliver it to the Alaska S. S. Company's pier; that the defendant proceeded immediately to the Alaska S. S. Company's pier but could not unload there because the dock was the closed for the day.'

We are of the opinion the findings of fact made by the trial court are supported by substantial evidence, and might well have been set out as the established facts in this case, without further reference to the testimony, but in view of the fact that error is based upon four of the findings, we thoguht it proper to set forth the evidence upon which the findings are based.

However, being of the opinion that the findings are amply sustained by the evidence, the question presented is whether or not the conclusions of law and judgment are supported by the findings.

In order that there be no question as to the factual situation found by the trial court, we set out the findings in full, except as to the repetition of the words 'goods, wares and merchandise,' to which we shall refer as goods.

Findings 1 and 2 merely state that plaintiff is a corporation admitted to do business in this state, and has paid all fees owing to the state, and that defendant is a corporation operating as a common carrier in the city of Seattle, under a permit issued by the state of Washington.

The findings continue:

'3. That prior to October 10, 1941, plaintiff contracted to sell to the United States of America certain goods which were to be delivered by it f. o. b. U.S. Engineers Army Transport, Pier A, 1518 South Alaskan Way, Seattle, Washington.

'4. That at or about the hour of 5:00 o'clock p. m., October 10, 1941, plaintiff loaded certain goods on defendant's truck, to be delivered by the defendant to U.S. Engineers Army Transport, Pier A, 1518 South Alaskan Way, Seattle, Washington.

'5. That the defendant's truck proceeded immediately from the plaintiff's warehouse where it had been loaded to U.S Engineers Army Transport, Pier A, 1518 South Alaskan Way, Seattle, Washington. That the defendant presented the bill of lading and the said goods to the U.S. Engineers Army...