Hogan v. Allison
| Decision Date | 26 May 1955 |
| Docket Number | 6 Div. 416 |
| Citation | 263 Ala. 451,82 So.2d 909 |
| Parties | Mrs. Will HOGAN v. Robert G. ALLISON (Allison Coal Transfer Warehouse) et al. |
| Court | Alabama Supreme Court |
Taylor, Higgins, Windham & Perdue and Wade H. Morton, Birmingham, for appellant.
Jos. S. Mead, Birmingham, for appellee Allison.
London & Yancey, Jas. E. Clark, Birmingham, for appellee Maryland Cas. Co.
This is an action under the Uniform Warehouse Receipts Act, Code 1940, Tit. 2, §§ 504-567, brought by appellant against appellees Robert G. Allison, doing business as Allison Coal Transfer Warehouse, and Maryland Casualty Company, a corporation, as surety on Allison's Public warehouseman's bond, to recover for the loss of certain household goods, personal property and effects stored by appellant with appellee Allison, as warehouseman, and which were not returned to appellant by appellee Allison upon demand made therefor.
The original complaint charged that the stored property was destroyed by fire through Allison's 'lack of ordinary care and diligence.' As last amended, the complaint presents an action ex contractu in one count which alleges, in substance, the following: That on December 27, 1949, Allison was engaged in the business of storing household goods, personal property and effects as a public warehouseman for a reward in Birmingham, Alabama; that on that date appellee Maryland Casualty Company was surety on Allison's bond as such public warehouseman; that on October 31, 1946, appellant stored with Allison, as such public warehouseman, certain household goods, personal property and effects, naming them; that upon delivery of the property to Allison he issued and delivered to appellant a warehouse receipt therefor; that appellant paid Allison the storage charges required and demanded for said storage; that on December 29, 1950, appellant made demand on Allison for return of the property and at that time offered to surrender the warehouse receipt and to acknowledge receipt of the property upon delivery of it to her; that Allison failed to deliver the property in compliance with said demand and that appellant claims of appellees $1,500, with interest, as damages for breach of the duty owed by Allison, as such public warehouseman, to appellant.
Appellees filed separate demurrers to the amended complaint. These demurrers being overruled, appellees then interposed 7 pleas.
Pleas 1 and 2 are pleas of the general issue.
In plea 3 it is averred that the claimed loss and damage 'were the proximate consequence of a fire, which said fire occurred prior to the alleged demand of the plaintiff on the defendant Allison for her property, and the plaintiff was notified by the defendant Allison that the said fire had damaged and destroyed her said property.'
Plea 4 is the same as plea 3 except that the fire is alleged to have occurred on December 27, 1949, and that the cause or origin of said fire is unknown to the defendants.
Pleas, 5, 6 and 7 specifically deny liability and aver that, if there is liability, plaintiff cannot be awarded any damage in excess of $50 for any article, piece or package of said goods stored with the defendant Allison because, prior to the storage of said goods, plaintiff and defendant Allison for a valuable consideration, entered into a contract in writing, designated 'Warehouse Receipt and Contract', in which it is provided as follows:
'The owner of the goods declares the value in case of loss or damage for each or any piece or package and the contents thereof does not exceed $50.00.
'The owner has the option of paying a higher rate, without limitation as to value, in case of loss or damage from causes which would make the Company liable, but agrees to specified valuation named, in case of loss or damage from causes which would make the Company liable, because of the lower rate thereby accorded.
It is further averred that 'the plaintiff entered into said stipulation with the defendant warehouseman Allison without fixing a greater value than $50.00 on any article, piece or package stored with the defendant warehouseman Allison, and without agreeing to pay an additional charge of one-fourth of one per cent. per month thereon.'
Appellant demurred to pleas 3 through 7. These demurrers being overruled, appellant moved for a non-suit, which was granted This appeal is from the judgment of non-suit and presents for review the trial court's action in overruling the demurrers to pleas 3 through 7.
There are two questions presented, viz.:
I. Whether in an action to recover on a contract of bailment under the Uniform Warehouse Receipts Act a warehouseman has the burden of acquitting himself of negligence in showing lawful excuse for the failure to deliver property stored by a bailor upon legal demand therefor by the bailor when the property bailed has been destroyed by fire during the bailment.
II. Whether a public warehouseman may, by contract of bailment under the Uniform Warehouse Receipts Act, limit his liability with respect to loss of property deposited with him.
Prior to adoption of the Uniform Warehouse Receipts Act, Gen.Acts 1915, p. 661; Code 1940, Tit. 2, §§ 504-567, supra, it was well established in this state that in a suit by a bailor against a bailee, where the bailee failed, on demand, to deliver to the bailor goods intrusted to him, or did not account for the failure to deliver, prima facie, negligence was imputed to him, and the burden of proving a loss without the want of ordinary care devolved upon the bailee. Southern Railway Company v. Aldredge & Shelton, 142 Ala. 368, 371, 38 So. 805, 806; First Nat. Bank of Birmingham v. First Nat. Bank of Newport, 116 Ala. 520, 537, 22 So. 976; Davis & Son v. Hurt, 114 Ala. 146, 149, 21 So. 468; Prince v. Alabama State Fair, 106 Ala. 340, 346-347, 17 So. 449, 28 L.R.A. 716; Seals v. Edmondson, 71 Als. 509, 512-513; Bricken v. Sikes, 14 Ala.App. 187, 189, 68 So. 801. But, where the bailee explained his failure to deliver on demand and showed that the goods were lost by a cause not involving him in liability, as by fire, theft, or violence of nature, the imputed negligence was rebutted. Seals v. Edmondson, supra; Bricken v. Sikes, supra.
And that rule, with respect to ordinary bailments, has been approved in later cases. Aircraft Sales & Service v. Bramlett, 254 Ala. 588, 592, 49 So.2d 144; Lewis v. Ebersole, 244 Ala. 200, 206, 12 So.2d 543. It is on these cases that appellees place principal reliance and assert in brief that 'this appeal is an attempt to avoid the rule' applied in those cases. We do not think the rule of those cases is controlling here. In the instant case we are dealing with rights, duties and liabilities under the Uniform Warehouse Receipts Act, supra, and not with ordinary bailments which were involved in the cited cases. As we see it, the point to be decided, which will be determinative of the first question, is whether the Uniform Act has had the effect of making the stated rule inapplicable to bailments under the Act. We do not find that this precise question has been passed on by this court.
Bearing on the question are two sections of the uniform Warehouse Receipts Act, Code 1940, Tit. 2, §§ 511, 526, §§ 8 and 21, respectively, of the Uniform Act, 3 U.L.A., pp. 18, 19, 35. These sections are as follows:
Statutory provisions similar to these, patterned after Sections 8 and 21 of the Uniform Act, have been adopted by all of our sister states. 3 U.L.A., 1953 Pocket Part, p. 6. But, an examination of the cases dealing with the question here before us discloses that the decisions are in conflict. See 56 Am.Jur., Warehouses, §§ 268, 269, pp. 442-444; Annotation 13 A.L.R.2d 681; 67 C.J., Warehousemen and Safe Depositaries, §§ 261, 263, pp. 571, 572, 573, 574.
This conflict is thus recognized in the following from 56 Am.Jur., Warehouses, § 268, p. 443, supra:
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