Federal Compress & Warehouse Co. v. Coleman

• Decision Date: 15 June 1926
• Docket Number: 25702
• Citation: 143 Miss. 620,109 So. 20
• Parties: FEDERAL COMPRESS & WAREHOUSE CO. v. COLEMAN. [*]
• Court: Mississippi Supreme Court

109 So. 20

143 Miss. 620

FEDERAL COMPRESS & WAREHOUSE CO. v. COLEMAN. ^[*]

No. 25702

Supreme Court of Mississippi

June 15, 1926

Division A

Suggestion of Error Overruled July 12, 1926.

APPEAL from circuit court of Alcorn county, HON. C. P. LONG, Judge.

Suit by Tom Coleman against the Federal Compress & Warehouse Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Judgment affirmed.

Green Green & Potter, for appellant.

The question of procedure which troubled the mind of the court below was: Under the Warehouse Act, what is the proper course of pleading? Our contention is that where plaintiff sues to recover property under a contract of bailment and avers a contract, and failure to deliver upon demand; and the defendant pleads that the goods were destroyed by fire, then plaintiff must aver that the fire was negligently set out or caused by the warehouseman.

Defendant sought to raise the question sharply by pleading that the warehouse was destroyed and the cotton lost by fire, and to this plea a demurrer was interposed because the plea did not aver that it was lost without negligence and this demurrer was sustained.

The Uniform Warehouse Act styled "Warehouse Receipts," Hemingway's Code Supp., section 7957-a, et seq., provides for a statutory form of contract and for statutory definition of the measure of responsibility of the warehouseman.

As a part of the contract, the measure of responsibility of the warehouseman is to safekeep. Hence, in order to plead this statutory cause of action, it would be necessary not only to aver the execution of the receipt in terms required by section 7957-b, Hemingway's Code Supp., but that the goods were delivered in pursuance of this receipt and that the bailee agreed to pay the charges therein required, and that he had made a demand in pursuance of section 7957-H accompanied with the offers therein specified and hereinbefore recited, and that the warehouseman had "failed to exercise that degree of care in the safekeeping of the goods which a reasonably careful man would exercise in regard to similar goods of his own," and then specify wherein this degree of care was not exercised.

This statute does not impose liability for negligence generally but confines liability to that class of cases in which the law of master and servant applies, nonliability of a fellow servant where the master had exercised reasonable care in the selection of the servant who did the injury.

Turning to the pleading herein, the declaration does not aver any breach of any duty by the warehouseman. To this declaration defendant plead that the warehouse and cotton were destroyed by fire. This was a good plea. 27 R. C. L. 1002; 40 Cyc. 470; Y. & M. V. R. R. Co. v. Hughes, 94 Miss. 242, 47 So 662; So. R. R. Co. v. Prescott, 240 U.S. 632, 60 L.Ed. 836; Y. & M. V. R. R. Co. v. Hughes, 94 Miss. 242.

The Warehouse Receipt Act, section 7957-H, Hemingway's Code Supp., after providing conditions precedent to accompany the demands for the goods, recites, "in case the warehouseman refuses or fails to deliver the goods in compliance with a demand by the holder or depositor so accompanied, the burden shall be upon the warehouseman to establish the existence of a lawful excuse for such refusal." It is to be noted that this does not say "burden of proof," but says the "burden" shall be upon the warehouseman to establish the existence of a lawful excuse for such refusal.

Now, the Warehouse Act necessarily is predicated upon principles of law existent and which must be given application in the interpretation of its provisions. 13 C. J. 560, "Contracts."

Negligence is never presumed and destruction by fire is a plea vis major and not necessarily connected with the act of the party. It furnishes, as made by the plea, a "lawful excuse." Hanson v. Oregon-Washington R. & Nav. Co., 188 P. 970; The Hughes case, 94 Miss. 242; Runkle v. So. Pac. Milling Co. (Calif.), 195 P. 398; McCrory Stores Co. v. Westside Warehouse Co., 171 N.Y.S. 35; Wilson v. Chrystal, 176 N.Y.S. 341; Wilson v. S. Pac. Ry. Co., 62 Cal. 164; Noel v. Schurr, 140 Tenn. 245, 204 S.W. 32; Scott v. Sample (La.), 87 So. 478; McCullom v. Porter, 17 La. Ann. 89; Firestone Tire Co. v. Pac. Tr. Co. (Wash.), 208 P. 55-8; Whittington v. Cameron Compress Co. (Tex.), 268 S.W. 216-22; Grady v. Blue Line Storage Co. (Iowa), 190 N.W. 375; Export & Traders Compress & Warehouse Co. v. Schulze (Tex.), 265 S.W. 133, overruling 253 S.W. 702; Churchill v. Walling (Ala.), 88 So. 582.

There has been, as shown by the quotations from 40 Cyc. 473; and 27 R. C. L. 1002, a conflict of authorities as to the proper rule of procedure in different jurisdictions and cases can be found holding that the burden of proof is upon defendant to acquit itself of negligence, and denying the established rule of Mississippi and of the supreme court of the United States that where the destruction is by fire, the burden of proof is upon plaintiff to show that the fire was negligently caused by defendant. These receipts show upon their face that destruction by fire was not within the purview of the contract in their recitals that the property is not insured.

The ruling is uniform that a warehouseman is not an insurer, and when in the face of a contract the stipulation appears that the goods are not insured, it bears a doubt aspect; namely, (1) that while the warehouseman is to take care of the property as he would his own, and while ordinary common prudence would dictate that the property, especially combustible property, should be insured, there was no obligation on the part of the warehouseman to insure the property against destruction by fire, lightning or tornado; and (2) that the act does not create an absolute liability for negligence generally, but confines liability to want of care such as an ordinarily prudent man would take of his own property, and this excludes from consideration the material elements of liability which obtain between persons dealing at "arm's length," whereby the goods of one might be entrusted to another for hire.

The rule applicable to carriers, innkeepers, etc., is not within the purview of the Warehouse Act. Exhibit "B" to the declaration, the warehouse receipt, controls the allegations of the declaration. Hamer v. Rigby, 66 Miss. 41; Panola Bank v. Newman, 78 So. 517; House v. Gumble, 78 Miss. 259; McNeil v. Lee, 79 Miss. 455.

W. C. Sweat, for appellee.

The question in this case involves a construction of section 8 of the Uniform Warehouse Receipts Act, chapter 18, Laws of 1920. See also sections 21 and 57 of the Act.

We contend that the plaintiff fully complied with the requirements of the statute when he alleged and proved the delivery of the cotton to the warehouse and his subsequent demand therefor in compliance with the requirements of the act, and the defendant's failure to deliver the cotton.

The defendant plead that the destruction of the cotton by fire, even though not denying that the fire was due to defendant's negligence, constituted a lawful excuse for delivery within the meaning of section 8 of the act.

Under the common law and before the enactment of the Uniform Warehouse Receipts Act, the decisions of the states were not uniform; some states held that where a person deposited goods in a public warehouse and took a receipt therefor and later demanded his goods and offered to return the receipt, then the warehousemen had to show a good excuse for not delivering the goods and that in order to show such excuse it was necessary to show not merely that the goods were destroyed but also without negligence. Fleishmam v. So. Ry. Co., 76 S.C. 237, 56 S.E. 974; Beck v. Wilkin-Ricks Co., 179 N.C. 231, 102 S.C. 313, 9 A. L. R. 554.

Other states held that where the plaintiff made out a prima-facie case, as above described, it was sufficient for the warehouseman to show that the goods were destroyed by fire or were stolen, without any showing as to whether the fire or theft were due wholly or in part to the defendant's negligence. In other words, the decisions of this class hold that where the plaintiff proved a lawful demand for the goods and his right to their possession, that raised a presumption of negligence. In that state of the case, it was conceivable that the goods might or might not have been lost or destroyed by the negligence of the defendant. The defendant then had only to allege and prove, as an excuse for nondelivery, some event such as a fire or theft which might or might not have been caused by the defendant's negligence. Then the plaintiff had to go forward with the case and allege and prove further facts tending to indicate negligence on the part of the warehouseman. Representative examples of this class of cases are: Exporters, etc., Warehouse Co. v. Schulze (Tex.), 264 S.W. 133; Firestone Tire & Rubber Co. v. Pac. Transfer Co., 120 Wash. 665, 208 P. 55. Under the common law the supreme court of Mississippi has aligned itself with the latter class of cases. R. R. Co. v. Hughes, 94 Miss. 242, 47 So. (1908) 662; Meridian Fair Ass'n v. R. R. Co., 70 Miss. 808, 2 So. 565.

At this stage in the development of legal reasoning, the Uniform Warehouse Receipt Act was enacted, including the clear and definite provision in the last paragraph of section 8 that on the making out of a prima-facie case by the plaintiff, the burden shall then be upon the warehouseman to establish the existence of a lawful excuse for such refusal. The act does not say that the burden shall shift back and forth. The act does not say that the warehouseman shall then have the burden of proving that the loss of the goods was due to some act "consistent with the exercise of due care." The act definitely and affirmatively places the burden of proof on the...