Morris Storage & Transfer Co. v. Wilkes

• Decision Date: 09 May 1907
• Docket Number: 272.
• Citation: Morris Storage & Transfer Co. v. Wilkes, 1 Ga.App. 751, 58 S.E. 232 (Ga. App. 1907)
• Parties: MORRIS STORAGE & TRANSFER CO. v. WILKES.
• Court: Georgia Court of Appeals

58 S.E. 232

1 Ga.App. 751

MORRIS STORAGE & TRANSFER CO. v. WILKES.

No. 272.

Court of Appeals of Georgia

May 9, 1907

Syllabus by the Court.

A bailment implies and requires, on the part of the bailee, the utmost good faith as to every matter whereby the rights of his bailor may be affected. This is not the imposition of extraordinary diligence.

While a bailee or depository for hire is not bound to exercise extraordinary diligence in the care and keeping of his bailment, still he is bound to ordinary diligence, measured by good faith towards his bailor-a golden rule of the law-the same diligence in the preservation of the bailor's property as in the preservation of his own.

[Ed Note.-For cases in point, see Cent. Dig. vol. 6, Bailment, § 45.]

When property in the custody of a bailee for hire is demanded by a third person under color of process, it becomes his duty to ascertain whether the process is such as requires him to surrender. If the proceeding is illegal or void, it is the right and duty of the bailee to refuse to surrender the property of the bailor committed to his care. It is his duty to offer such resistance to the taking, and to adopt such measures for reclaiming it, if taken, as a prudent man would if his own property had been demanded and taken under a claim of right without legal process.

Error from City Court of Atlanta; Reid, Judge.

Action by Mrs. Wilkes against the Morris Storage & Transfer Company. Judgment for plaintiff. Defendant brings error. Affirmed.

Mrs Wilkes sued for $300 damages on account of the failure of the defendant storage company to deliver to her, on demand certain household goods that she had intrusted to it for keeping. It appeared that the defendant had suffered the goods to be removed from its warehouse upon the exhibition by a constable of a paper purporting to be an attachment in favor of the R. S. Crutcher Furniture Company against Mrs Wilkes. Under the evidence and the court's charge the jury found for the plaintiff $175, and the defendant excepted to the refusal of a new trial. For the other facts see the opinion.

Arminius Wright, for plaintiff in error.

R. B. Blackburn, for defendant in error.

RUSSELL J.

The plaintiff in error complains that its motion for new trial was refused, and this is the only assignment of error in the bill of exceptions. The motion was based on the general grounds, and on four grounds which were added to the original motion by amendment. We will first consider the amended grounds, because, under the ruling of this court in Crankshaw v. Schweizer, 1 Ga.App. 363, 58 S.E. 222, there is no merit in the general grounds, unless some error produced or contributed to the result and the verdict complained of.

The first ground of the amended motion is that the verdict is contrary to the evidence on the subject of value and not authorized by the evidence. Plaintiff in error insists that in no event could the verdict have been greater than $100; that the only evidence offered by the plaintiff on the subject of value, delivered by the husband of plaintiff, was to this effect. It is true that the husband of plaintiff testified, on cross-examination, that "they would have brought about one-half of what they cost had they been sold"; but this was not the only evidence on this subject. Not only did the plaintiff's husband swear as above quoted, which was merely his belief of what the goods would bring at a forced sale, but, in further testifying, he said that the furniture in question cost $200, that it was still not quite a year old, and that he could not have gotten the same furniture at the time it was taken from the storage company for what he bought it for. C. A. Morris, of the defendant company, testifying in its behalf, it is true, placed the value at $50, $75, or $100; but on cross-examination he admitted that at a forced sale household goods, such as the personal property in question, very seldom brings what it is worth, and gave his opinion, as an expert, that if he had household furniture that answered his purpose, and which originally cost $200, and which it would take $200 to replace, the furniture taken away from him would be equal in value to the new furniture. We think that the jury had the right, under the evidence, to fix the value of the property at the amount of their finding, under the proper charge of the court upon the subject of value: "The question of value is one of fact, which you will decide for yourself. You are not bound by the opinion of a witness as to value. You are not required to take opinions as representing the value of the articles mentioned. You will take into consideration all the evidence that will illustrate the question to you; take into consideration the opinion of witnesses as given to you; take into consideration what it cost to purchase the goods, if the evidence discloses it; take into consideration what it would cost to replace the goods, if the evidence discloses it, and all the evidence on the subject that will illustrate the subject-and then yourself decide what sum would represent a reasonable and proper value of the articles involved; and that sum, if the plaintiff recovers, should represent the amount of her recovery." Under the evidence above referred to, the jury would have been authorized to base their finding on the testimony in favor of the plaintiff, on this subject, in preference to that of the bailiff, who is denominated an expert, or the witness who did the multifarious service of swearing out the attachment, going security on the bond, and separating and seizing the property in question, and finally giving expert testimony in behalf of the corporation.

The second ground of the amended motion complains that the court refused to allow the defendant to show that Mrs. Wilkes was indebted to one Crutcher for the property for which she was suing, and upon which the attachment was levied for the purpose of recovering the purchase money of the same. There was no error in this ruling. The reply of the trial judge, in rejecting the evidence offered on this subject, was exhaustive, when he said, "You cannot take her goods and pay Crutcher's debt."

In the fourth ground of the amendment to the motion the plaintiff in error complains that the verdict is contrary to the charge of the court, quoted above. This ground, for the reason stated above, is not well taken.

The last ground of the amended motion asks for a new trial on the ground of newly discovered evidence. The evidence discovered after the trial and verdict purports to be a certain conditional bill of sale, signed by the plaintiff, and in favor of R. S. Crutcher Furniture Company, describing the goods sued for in this case, by which title to the goods was reserved in the furniture company, and it was provided that in default of payments therein stipulated the furniture company should have the right to take possession of the property "without any legal process." We think the court rightly refused to grant a new trial on this newly discovered evidence, because the most ordinary diligence under the circumstances of the case, would have disclosed the existence of the document in question before the trial. The Morris Transfer & Storage Company did not deal with the R. S. Crutcher Furniture Company as with strangers afar off. The record does not disclose the exact distance which separates their respective places of business, but it does disclose the fact that they are both in the city of Atlanta, and upon terms of comity, if not of amity, by reason of which any inquiry addressed by the one to the other would have received a truthful response; for the evidence disclosed that the storage company actually allowed the agent of the Crutcher Company to go into the storage company's warehouse, take out the property that they identified, and move it to the Crutcher Company's place of business before any attachment was levied. The goods were carried away in Mr. Crutcher's wagon. The bailiff testified that "Mr. Poole [an employé of the Crutcher Company] was at the storage company's; that Mr. Crutcher telephoned me to meet him there; and when he did come there, the goods had been...