Lomax Transportation Co. v. United States, 12422.

• Decision Date: 18 August 1950
• Docket Number: No. 12422.,12422.
• Citation: 183 F.2d 331
• Parties: LOMAX TRANSPORTATION CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

183 F.2d 331 (1950)

LOMAX TRANSPORTATION CO. v. UNITED STATES.

No. 12422.

United States Court of Appeals Ninth Circuit.

July 14, 1950.

Petition to Remand Denied August 18, 1950.

Witherspoon, Witherspoon & Kelley and William V. Kelley, Spokane, Wash., for appellant.

Harvey Erickson, U. S. Atty., Frank R. Freeman, Asst., U. S. Atty., Spokane, Wash., for appellee.

Before MATHEWS, ORR and LINDLEY,^* Circuit Judges.

LINDLEY, Circuit Judge.

Appellant, defendant below, on October 2, 1944, contracted to store certain United States naval supplies in its warehouse in Spokane, Washington. The agreement defining the rights and obligations of the parties consisted of a printed form contract of a type ordinarily used for procurement of supplies rather than for storage, in which were inserted special typewritten provisions, one of which read: "Contractor assumes absolute responsibility for property in his possession and shall maintain Bond and Insurance at his own expense in accordance with the State of Washington Warehousing Laws."

Though it is difficult to cull the exact facts from the record before us, we understand that the government, pursuant to the contract, delivered certain naval stores to appellant's warehouse, receiving therefor warehouse receipts which, in substance, purported to absolve appellant from loss of or damage to the goods through fire or other causes beyond its control.

On December 26, 1944, a fire in the warehouse resulted in the destruction of or damage to certain of the supplies then stored there. A Naval Board of Inquiry, convened shortly after the fire, found no evidence of negligence on appellant's part. Later, appellant was notified, however, after salvage operations by the Navy had been concluded, that the Navy claimed that appellant was liable for losses due to the fire in the amount of $12,359.13. The claim was subsequently increased to $16,415.87, referred to the General Accounting Office, and demand for payment made. Appellant denied liability and this action ensued, resulting in a judgment for the government in the district court.

This appeal rests upon appellant's contentions that it was not, under the terms of the contract, an insurer of the supplies stored with it and, further, that, even though appellant had, by contract, bound itself to an insurer's liability, the government has failed to prove by competent evidence the damages it claims to have sustained.

Although appellant was, under the laws of the State of Washington, in the customary conduct of its business, subject only to the common law liability of a warehouseman as distinguished from the absolute liability of an insurer, and although there were in existence Naval Regulations to the effect that no insurance provisions other than those appearing in the prepared printed form contract should be included in procurement contracts (emphasis supplied), it seems quite clear that neither the laws of Washington nor the Regulations precluded appellant from contracting to assume the absolute liability of an insurer with respect to the supplies stored with it by the Navy. This, it seems equally clear, is precisely what was effected by the insertion of the typewritten Special Provision 4A in the contract. That that provision may be inconsistent with the terms of the printed Article 10 and those of the printed warehouse receipts does not, as appellant suggests, militate against its binding legal effect, for it is well settled that, where a special clause has been written...