Richter Bros. v. Atlantic Co.

• Decision Date: 05 December 1938
• Docket Number: 27031.
• Citation: 200 S.E. 462,59 Ga.App. 137
• Parties: RICHTER BROS. et al., for Use, etc. v. ATLANTIC CO.
• Court: Georgia Court of Appeals

200 S.E. 462

59 Ga.App. 137

RICHTER BROS. et al., for Use, etc. v. ATLANTIC CO.

No. 27031.

Court of Appeals of Georgia, First Division

December 5, 1938

Syllabus by the Court.

1. In a suit by a bailor against the bailee for the negligent destruction of the bailed property, in view of the provisions of the Code, § 12-104, it was reversible error for the trial judge to relieve the defendant of the duty under this motion and to charge the jury, in effect, that the defendant was under no duty of making any defense until the plaintiff had proved all of the essential facts of his case, including negligence, by evidence.

2. Under the facts of the present case the provision of the Code, § 105-603, is not applicable, and the trial judge erred in giving the same in charge to the jury.

3. In a case of the present character, a suit by the owners of the damaged property for the use of themselves and an insurance company, which company was subrogated to the rights of the owners with respect to a part of the damages sustained, there was no necessity for a charge that "it is within the purview of the law to enter into a contract whereby it becomes necessary for the bailor, the plaintiff in this case, to take out fire insurance under his contract of bailment."

4. The remaining assignments of error show no material error.

5. Under the rulings made in headnotes 1 and 2, the court erred in overruling the motion for new trial.

Error from City Court of Albany; Clayton Jones, Judge.

Action by Richter Bros. and others, for Use, etc., against the Atlantic Company to recover damages to pecans which plaintiffs had on storage with defendant as a bailee and warehouseman. Verdict and judgment for defendant, and to review a judgment overruling a motion for new trial plaintiffs bring error.

Reversed.

Bennet & Peacock, of Albany, and MacDougald, Troutman & Arkwright and Dudley Cook, all of Atlanta, for plaintiffs in error.

S. B Lippitt, of Albany, for defendant in error.

MacINTYRE Judge.

Richter Brothers and others filed the present action to recover damages to a quantity of pecans (as the result of fire) which the plaintiffs had on storage with the defendant as a bailee and warehouseman. The complaint set out in detail the contract of bailment, the quantity of pecans stored, and the amount of damage resulting from the fire. It was alleged that the defendant was a warehouseman with reference to said goods and a depository for hire, and became bound for ordinary diligence in safely protecting, keeping, and redelivering said goods. In this connection it was alleged: that defendant failed to use ordinary care in keeping safely the things bailed; that while storing 500,000 pounds of pecans worth about $100,000, defendant negligently piled the sacks of pecans eight or ten high, too close to incandescent electric lights, the pecans being full of oil and being inflammable so that when the lights were left burning the pecans caught on fire; that while many thousand pounds of pecans of great value were on storage, defendant negligently allowed the sacks, etc., to be shoved against the incandescent electric lights and their fixtures, thus loosening the incandescent lights and causing them to sag down low enough to come in contact with the bags and fire them; that while storing 500,000 pounds of pecans, worth about $100,000, defendant maintained incandescent electric lights close to the pecans which were oily and inflammable, and likely to come in contact with them, yet failed to provide said incandescent lamps with wire shields or guards to prevent each from coming in contact with the inflammable pecans; that while storing 500,000 pounds of pecans, worth $100,000 defendant maintained incandescent lamps close to the oily and inflammable pecans to make it likely that they would set fire to the same if left burning a sufficient length of time, and on the night of the fire they were negligently left burning such length of time and did set fire to the pecans; that defendant negligently failed to have a watchman inspect said pecans in each store-room at least once each hour of the day and night, to discover and put out fires; that with so valuable an amount of pecans on hand of such inflammable nature, defendant should have had a sprinkler system to guard against fire, and failed to do so; that with 500,000 pounds of pecans of the value of $100,000 on hand, defendant had them stored in three separate compartments, separated by brick walls, with six-foot openings between, and no doors in said openings to hermetically seal them and prevent noxious gases going from one compartment to the other, so that when a small fire broke out in the southernmost compartment and smouldered for several hours the heat distilled the nuts, driving off noxious gases and vaporized oil, which went to where plaintiffs' pecans were stored in the northernmost compartment, said gases penetrating the hulls of the pecans and rendering them unfit for human consumption, and this would have been prevented by hermetically sealed doors; that with such valuable and inflammable pecans on hand defendant negligently failed to provide but one entrance and exit by elevator, so that fire fighters could not control the fire, and had to break through the ceiling, with the result that the fire in the southernmost compartment smouldered six additional hours after it was discovered, thereby greatly adding to the damage of plaintiffs' pecans in the northernmost compartment; that defendant realizing the fearful danger of fire on account of the close proximity of the incandescent lights to the highly inflammable pecans, instead of refusing to receive and store additional pecans in its overcrowded warehouse, and instead of providing lights with wire guards or shields to make it impossible for them to touch the pecans, and instead of removing the light globes entirely, did negligently adopt the silly expedient of partially unscrewing out of their sockets some of the light globes, which were thus endangering the contents of the warehouse, in order to prevent said lights burning so close to the piled-up pecans, and ordinary diligence required that defendant should know that such expedient was insufficient to guard against the danger, and that a slight jar, or increased current, or other thing, would likely start to burning again such lights thus partially unscrewed from their sockets; that defendant's warehouse was originally equipped with three pilot lights at the elevator (one on the circuit of lights for each room), so that one looking up the elevator shaft could tell by the pilot light whether any of the electric lights in any room were burning, but for some months before the time of the fire said defendant had negligently failed to replace the burned-out or destroyed pilot lights at the elevator, so that none of them could give warning to persons looking up the elevator shaft that the lights were burning in the room where plaintiff's pecans were stored, and if said pilot lights had been operating on the night of the fire, the fact that the lights were burning would have been discovered in time to prevent injury to plaintiff's pecans; that defendant negligently piled inflammable sacks of pecans eight or ten sacks high, near the ceiling, close to and above the incandescent electric lights which hung down fifteen or eighteen inches from the ceiling, and especially about two or three days before the fire, at the point on the fourth floor where the fire later started, did negligently pile such sacks in a manner other than directly and solidly above each other with the weight distributed evenly, with the result that said sacks were piled in a state of unstable equilibrium, so that they were likely to, and did, shift their position, with the result that the sacks closest to the incandescent lamp which hung where the fire originated, did, within twenty-four hours before the fire, settle and shift themselves, so as to bring them in contact with the incandescent light, so that the light did set said pecans on fire, and by ordinary care the defendant could have foreseen that such shifting would occur, and that said fire would result therefrom.

1. The action, properly construed, sounds in tort founded on a breach of duty springing from a violation of the contract of bailment. Miller v. Ben H. Fletcher Co., 142 Ga 668(2), 83 S.E. 521; Bates v. Madison County, 32 Ga.App. 370(3), 123 S.E. 158. Compare Fain v....