P. & A. Dispatch, Inc. v. McDougall
| Decision Date | 14 March 1930 |
| Docket Number | 13,895 |
| Citation | 170 N.E. 551,91 Ind.App. 181 |
| Parties | P. AND A. DISPATCH, INCORPORATED, ET AL. v. MCDOUGALL |
| Court | Indiana Appellate Court |
From Marion Superior Court (A40,751); William O. Dunlavy, Judge.
Action by Charles F. MacDougall against the P. and A. Dispatch Incorporated, and others. From a judgment for plaintiff, the defendants appealed.
Affirmed.
Clyde C. Karrer, for appellants.
Albert E. Schmollinger and Walter O. Lewis, for appellee.
Appellee plaintiff below, by his complaint alleged, in substance: That the defendants, appellants herein, were, on May 29, 1926, and prior and subsequent thereto, engaged in the business of the transportation of household goods and other personal property and storage of the same for hire; that appellants Clarence E. Armstrong and Gertrude Armstrong, were the owners of, and did business under the name and style of, "the Blue Star Transit Company"; that appellants Armstrong and Armstrong, were the principal owners of appellant P. and A. Dispatch, Incorporated, and appellant Clarence E. Armstrong was the manager of the corporation; that, on May 29, 1926, appellee and appellants entered into a written agreement, which agreement was made a part of the complaint, whereby appellants agreed to store the household goods and personal property of appellee for the sum of $ 5 per month, and thereafter to transport the goods to Chicago for a stipulated amount; that, on the day above mentioned, and, pursuant to the stipulations of the written agreement, appellee delivered into the possession and keeping of appellants his household goods and personal property of the value of $ 1,800; that the household goods and personal property of appellee were transported by appellants to their warehouse in the city of Indianapolis, Indiana, and were there placed in storage; that the warehouse of appellants was formerly used for the business of a livery stable; that it was a frame building, constructed of materials which were highly inflammable, and was not properly or reasonably constructed to resist fire; that the household goods of appellee were not separated from the goods and property of other persons by partitions of such a character as to resist or prevent destruction by fire; that appellants did not make known to appellee, and appellee had no knowledge of, the character of the warehouse where his goods were placed in storage; that appellants negligently and carelessly failed to take proper care of the goods and protect the same from fire, in that appellants placed, stored and kept the household goods of appellee in a warehouse which was known to them to be a structure of such character as to be highly inflammable and not reasonably protected against destruction by fire; that the goods of appellee were wholly lost and destroyed by fire on or about July 5, 1927, to appellee's damage in the sum of $ 1,800.
Appellants separately and severally moved that the complaint be made more specific, which motion was overruled; they then presented their separate and several demurrer to the complaint, which was also overruled. Appellants answered by general denial. Trial was had before a jury, which found for appellee and assessed his damages in the sum of $ 1,400; appellants' motion for a new trial was overruled and judgment rendered on the verdict.
The errors assigned are: (1) Overruling appellants' motion to make the complaint more specific; (2) overruling appellants' demurrer to the complaint; (3) overruling appellants' motion for a new trial, which presents as causes therefor: (1) That the verdict of the jury is not sustained by sufficient evidence; (2) that the verdict is contrary to law.
The allegations charge that appellants did not exercise due care and reasonable precaution to protect and preserve the property in their custody, in that the goods were stored in a building which was not reasonably fit and safe for the storage of household goods and other property, and thereby breached the contract. Holt Ice, etc., Co. v. Arthur Jordan Co. (1900), 25 Ind.App. 314, 57 N.E. 575; Glazer v. Hook (1920), 74 Ind.App. 497, 129 N.E. 249. The several allegations were sufficient to apprise the appellants of the breach of contract relied upon by appellee. No reversible error is available to appellants in overruling the motion to make the complaint more specific in this case. See Watson, Revision of Works' Practice § 826, and authorities cited; Belt R., etc., Co. v. McClain (1914), 58 Ind.App. 171, 106 N.E. 742. All of the matters mentioned in the complaint were peculiarly within the knowledge of appellants, and they cannot be heard to complain. Louisville, etc., R. Co. v. Crunk (1889), 119 Ind. 542, 21 N.E. 31, 12 Am. St. 443. Appellants' demurrer to the complaint was properly overruled.
It is the law that a warehouseman shall furnish a building for the storage of property which is reasonably fit and safe for such purposes. 27 R. C. L. 994. He is not required, however, to store goods in a fire-proof building in the absence of a contract to that effect. The rule may be stated thus: It is the duty of the warehouseman toward the depositor of goods in his care that he shall exercise due care and reasonable precaution to protect and preserve the property placed in his custody; that is, such care as an ordinarily prudent person engaged in that business is in the habit of exercising toward property intrusted to him for safe keeping. He should not only store them in a building reasonably safe from within, but should provide that they are reasonably safe from danger without. Chicago & Alton R. Co. v. Scott (1866), 42 Ill. 132; Wiley v. Locke (1909), 81 Kan. 143, 105 P. 11, 24 L. R. A. (N. S.) 1117, 19 Ann. Cas. 241; Barron v. Eldredge (1868), 100 Mass. 455, 1 Am. Rep. 126; Levine v. D. Wolff & Co. (1909), 78 N.J.L. 306, 73 A. 73, 138 Am. St. 617; Muskogee Crystal Ice Co. v. Riley Bros. (1909), 24 Okla. 114, 108 P. 629; note, 136 Am. St. 223. See New Albany & Salem R. Co. v. Campbell (1859), 12 Ind. 55; Rice v. Nixon (1884), 97 Ind. 97, 49 Am. Rep. 430.
The evidence favorable to appellee: On May 29, 1926, appellee entered into a written agreement with appellants whereby it was stipulated and agreed between the parties that appellants would store appellee's household goods for hire, and upon request, transport the same by truck to Chicago for a stipulated sum; after the execution of the agreement, appellee delivered to appellant at his residence his household goods, which were transported to a building called a warehouse and leased by appellants in their business; on July 5, 1927, about 10 p. m., the warehouse was partially destroyed by fire and appellee's household goods were rendered practically worthless on account of the fire and water; appellant's warehouse was located on Deloss Street in the city of Indianapolis, was a frame structure, dimensions 40x40, and covered with a composition roof; the structure was inclosed by wood siding; the floor was concrete and cinders; the building was located on the rear part of a lot on the alley side; the building was lighted with electricity; two main wires were attached to the wooden rafters about the center of the building along the comb of the roof; drop wires extended from the main wire and hung down near the center of the building; in the building were stored three trucks used by appellants in their business of transporting goods; these...
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