Kettenhofen v. Globe Transfer & Storage Co.

• Decision Date: 30 October 1912
• Citation: 70 Wash. 645,127 P. 295
• Court: Washington Supreme Court
• Parties: KETTENHOFEN et ux. v. GLOBE TRANSFER & STORAGE CO.

127 P. 295

70 Wash. 645

KETTENHOFEN et ux. v. GLOBE TRANSFER & STORAGE CO.

Supreme Court of Washington

October 30, 1912

Department 2. Appeal from Superior Court, King County; Mitchell Gilliam Judge.

Action by J. B. Kettenhofen and wife against the Globe Transfer &amp Storage Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Totten & Rozema, of Seattle, for appellant.

Kerr &amp McCord, of Seattle, for respondents.

ELLIS J.

This is an action to recover the value of certain household goods and wearing apparel destroyed by fire while in the custody of the defendant, Globe Transfer & Storage Company. The defendant was engaged in the business, among other things, of soliciting goods from different persons, having less than a car load lot, for shipment from Seattle to other points. Its custom was to receive such lots and hold them at its warehouse until a car load destined to a common point had been assembled. It then arranged with some railroad company for a car to that point, placed the goods in the car, each piece marked for identification as to ownership, billed the car to its agent, and turned the car over to the railroad company for transportation to the given point. The placing of such goods in the warehouse was not for storage, but for the defendant's own convenience in assembling the car load lots as incidental to the carriage of the goods. No storage charge was made. The defendant usually charged a freight rate for such shipments, higher than the railroad company's car load rate and lower than its less than car load rate; the defendant's compensation being the difference between its own charge and the car load rate paid by it to the railroad company. The defendant's manager testified that its agent at the point of destination pays the freight and collects the freight plus the defendant's compensation, styled by him 'our commission,' unless it is paid in advance.

The plaintiffs delivered their goods to the defendant under an oral agreement for shipment from their residence in Seattle to Milwaukee, Wis.; the defendant having agreed to notify the plaintiffs as soon as it would be ready to load the car. On Saturday, January 28, 1911, the notification was given, and the defendant in the afternoon of that day sent its conveyances, transported the goods from the plaintiffs' residence to its warehouse, where they arrived at about 6 o'clock in the evening, too late for loading into the car. They were placed in the warehouse for weighing, sorting listing, and storage till they could be placed in the car. While in the warehouse the goods were destroyed by fire. There was no evidence that the plaintiffs had any knowledge of the details of the defendant's business, or that the goods would be stored in the warehouse at all. The cause was tried to the court without a jury. The court found the facts substantially as above condensed, also, that the plaintiffs were damaged in the sum of $686, and that the reasonable value of the defendant's services in packing and certing the goods was the sum of $27.50. Judgment in favor of the plaintiffs was rendered for the difference of $658.50 and for costs. The defendant has appealed.

The appellant concedes that, if the goods when destroyed were in its possession as a common carrier, it is liable for their loss. It contends, however, that its possession was that of a forwarder or warehouseman, and not that of a common carrier. The duties and liabilities assumed by the appellant, 'in legal contemplation, must be determined by the nature of the contract of the parties.' A thorough examination of the evidence leads to the sure conclusion that the contract was one for a through shipment from the residence of the respondents in the city of Seattle to the city of Milwaukee. The means to that end were left entirely to the appellant's selection and control. The goods were delivered with no other direction expressed or implied. Neither the service on the one hand nor the compensation on the other was segregated, itemized, or separately considered. It was a contract for a through shipment at a rate to be fixed by the appellant. The goods were not delivered for mere forwarding to the railroad company, nor for storage in a warehouse. They were delivered for shipment by whatever route the appellant might find most to its advantage, and in a car of its own procuring. In this branch of its business the appellant was exercising the employment of receiving, carrying, and delivering goods, wares, and merchandise as an occupation, and for all people indifferently. By its contract it assumed the entire control of the goods, severing the respondents' connection therewith until delivery at the place of destination. Such was the ordinary course of its business, and such was the plain purport of the contract. It was a contract for carriage and delivery for hire, pure and simple; and in so contracting the appellant assumed the attributes and took on the relation of a common carrier for hire, with all of the duties and liabilities incident to that relation. It can make no manner of difference that in...