Oktibbeha County Cotton Warehouse Co. v. J. C. Page & Co.

• Decision Date: 14 May 1928
• Docket Number: 27018
• Citation: 151 Miss. 295,117 So. 834
• Parties: OKTIBBEHA COUNTY COTTON WAREHOUSE CO. v. J. C. PAGE & CO. [*]
• Court: Mississippi Supreme Court

117 So. 834

151 Miss. 295

OKTIBBEHA COUNTY COTTON WAREHOUSE CO. v. J. C. PAGE & CO. ^[*]

No. 27018

Supreme Court of Mississippi

May 14, 1928

Division A

Suggestion of Error Overruled Aug. 7, 1928.

APPEAL from circuit court of Oktibbeha county, HON. J. I STURDIVANT, Judge.

Action by J. C. Page & Co. against the Oktibbeha County Warehouse Company. From a judgment for plaintiff, defendant appeals. Reversed and rendered.

Judgment reversed.

Magruder, Walker & Magruder, for appellant.

Frank A. Critz and Will Ward, for appellee.

Argued orally by W. W. Magruder, for appellant, and Frank A. Critz and Will E. Ward, for appellee.

OPINION

McGOWEN, J.

The appellees, J. C. Page & Co., filed their declaration in the circuit court of Oktibbeha county against the appellant, Oktibbeha County Cotton Warehouse Company, seeking to recover the value of fifty-three bales of cotton, appellees' property, destroyed by fire in the warehouse of the appellant on the morning of September 4, 1927. The fifty-three receipts issued by the warehouse company for the fifty-three bales of cotton to J. C. Page & Co. were attached to the declaration. The declaration sought to impose liability on the appellant warehouse company for the loss, by fire, of the fifty-three bales of cotton under and by virtue of chapter 199, Hemingway's 1927 Code (chapter 218, Laws of 1920), and to invoke the construction of said chapter as announced by this court in Federal Compress & Warehouse Co. v. Coleman, 143 Miss. 620, 109 So. 20.

The appellant, the warehouse company, filed a plea of the general issue, with notice that appellee's cotton was wholly destroyed by fire without negligence on its part, and that the appellant had used such care in regard to its warehouse and all cotton stored therein as a reasonably careful owner of similar goods would have exercised with regard to cotton of his own.

If is urged here by the appellant, as it was urged in the court below, that, because of the appellees' failure to pay, or offer to pay, for the weighing charges due on their cotton at the time of the fire, the Warehouse Receipts Act cannot be invoked, but that this case is controlled by the announcement of this court in Y. & M. V. R. Co. v. Hughes, 94 Miss. 242, 47 So. 662, 22 L. R. A. (N. S.) 975. This question, among others, is argued earnestly and insistently pro and con.

In the court below, the appellant, the warehouse company, asked for, and was refused, a peremptory instruction, contending there, as well as here, that no negligence was shown on the part of the appellant in the handling of this cotton, and that the proof is uncontradicted that the cotton stored was handled by the appellant company with such care in regard to the goods stored as a reasonably careful owner of similar goods (cotton) would exercise.

Without so deciding, but assuming that said chapter 199, Hemingway's 1927 Code (chapter 218, Laws of 1920), was complied with by the appellees, and further assuming that the appellees had the right to base their action upon said chapter, and that, the property having admittedly been destroyed by fire the warehouse company, the appellant, must show the degree of care required by said act, we are of the opinion that the appellant met the burden imposed upon it by such act.

The facts of this case necessary to state are as follows: The Oktibbeha County Cotton Warehouse Company was operating, in the city of Starkville, a warehouse in which bales of cotton were stored. On September 4, 1927, about five o'clock in the morning, the warehouse was discovered to be on fire, and such warehouse with its contents--more than one thousand bales of cotton--was destroyed. In the evidence, it was shown that the warehouse's walls were constructed of brick, and that its roof was of metal; that its windows were protected by metal shutters, which remained closed; that there were ventilators, properly screened, in the roof; that the cotton was stored in blocks, with aisleways between; that the warehouse had been operated for a long time; that the appellant had an employee who actively weighed the cotton and kept the warehouse generally; that such employee had been in its employ for many years, and was competent and faithful; that the building was kept clean and free from loose cotton, or debris; that there was neither telephone nor electric light connections in the building; that no oil was used therein, nor flash-lights; that there was adequate connection with the city's water-mains; that water barrels filled, with two buckets to each barrel, were placed at convenient points throughout the building--in fact, no detail of protection to make the building safe from fire seems to have been omitted by the appellant, save, as insisted by the counsel for appellees, that, notwithstanding all this precaution, there was no human hand to turn the hydrant on or release the water upon fire consuming the warehouse and the property therein stored.

The main point of attack as tending to show appellant's failure to exercise such care in regard to the cotton stored within the warehouse as a reasonably careful owner of similar goods would exercise is the fact that there was no watchman on guard at night, and that the appellant depended upon the police officials of the city of Starkville for such protection.

It was shown by Joe Yeates, a colored cotton weigher, who looked after the appellant's warehouse and issued receipts etc., for the cotton, that he smelled "something like cotton burning," about noon, on the 3rd day of September, about seventeen or eighteen hours before the appellant's warehouse was discovered burning. He said that he thought he smelled cotton burning, and that he immediately looked throughout the warehouse, and found no evidence of fire therein, but saw smoke coming from near a...