Filson v. The Pacific Express Company

• Decision Date: 08 April 1911
• Docket Number: 17,015
• Citation: 114 P. 863,84 Kan. 614
• Parties: E. R. FILSON, Appellee, v. THE PACIFIC EXPRESS COMPANY, Appellant
• Court: Kansas Supreme Court

114 P. 863

84 Kan. 614

E. R. FILSON, Appellee, v. THE PACIFIC EXPRESS COMPANY, Appellant

No. 17,015

Supreme Court of Kansas

April 8, 1911

Decided January, 1911.

Appeal from Sedgwick district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. BAILMENTS--Negligence--Question of Law or Fact. In cases of bailment the degree of diligence or care required is a question of law for the court, but whether the bailee has exercised due care is a question for the jury, except in cases where but one reasonable inference can be drawn from the undisputed facts.

2. BAILMENTS--Negligence of Bailee and Proximate Cause of Theft a Question of Fact. The owner of an express package failed to call at the express office for it and the agent of the express company placed it in the company's office, which was located in a railroad depot consisting of a frame building, the doors and windows of which were locked. The depot had been used for years for depositing freight and express matter. It was entered during the night by a burglar breaking the glass of one of the windows, and the package with its contents was stolen. The package was a canvas-covered telescope containing moving-picture films. It weighed fifty-five pounds and was valued at $ 600, and the value was marked on the outside of the package in plain figures. In an action to recover against the company for its loss it was conceded that the liability of the company was that of a warehouseman. Held, that it was a question for the jury to determine from all the evidence and circumstances whether the express company failed to exercise ordinary care, and whether such failure was the proximate cause of the loss.

A. E Helm, for the appellant.

John W. Adams, and George W. Adams, for the appellee.

OPINION

PORTER, J.:

The appellee recovered judgment for the value of an express package which was lost under the following circumstances: On the 19th day of April, 1908, the appellee deposited with the express company at Belle Plaine, Kan., for shipment to Argonia, Kan., a package consisting of a canvas-covered telescope containing moving-picture films. The package weighed fifty-five pounds and was valued at $ 600, the value being marked on the outside in plain figures. The package was received at Argonia on the following day. The appellee failed to call for it and the agent of the express company placed the package in its office, which was located in the depot of the Missouri Pacific Railway Company. Argonia is a town of about five hundred inhabitants; the depot was a frame building, constructed as such depots usually are in villages of that size, and consisted of three rooms, the freight room, the waiting room, and an office. The doors and windows were fitted with locks and fastenings, and the windows, in addition to the clamp hooks, were fastened by nails driven into the casing. The agent left the package in the inner room, or office. During the night of April 21 the depot was burglarized by some unknown person breaking the glass of one of the windows and effecting an entrance to the room where the package was left, and the package with its contents was stolen and carried away. The depot was located about five blocks from the main part of town, and no special watchman or police protection had ever been provided for it. It had been used for years for depositing freight and express matter, and United States mail received on late trains was left in the depot over night by direction of the United States post-office department. The jury returned a verdict in favor of the appellee in the sum of $ 600. The express company appeals.

The principal claim is that the court erred in refusing to set aside the verdict on the ground that it was not sustained by sufficient evidence and is contrary to law. It is argued that but one reasonable inference can be drawn from the undisputed facts, and that therefore the question of negligence is one for the court. It is conceded by both sides that the relation of the appellant was that of a warehouseman, and its obligation was only to exercise ordinary care. The appellant's argument is that since the loss was the result of the burglary of a building, shown to be of the same kind and character as those used for depots by railroads and express companies in towns of the same size, and in which it was the practice of both railroads and express companies to leave their freight and express matter over night, therefore, as a matter of law, it conclusively appears that the company exercised ordinary care.

It is a general rule in such cases that the degree of diligence or care required is a question of law for the court; but whether the bailee has exercised due care is a question for the jury except in cases where but one reasonable...