Schmidt v. Chi. & N. W. Ry. Co.

• Decision Date: 20 June 1895
• Parties: SCHMIDT v. CHICAGO & N. W. RY. CO.
• Court: Wisconsin Supreme Court

90 Wis. 504

63 N.W. 1057

SCHMIDT

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

June 20, 1895.

Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.

Action by Charles E. Schmidt against the Chicago & Northwestern Railway Company to recover the value of certain goods. From a judgment for defendant, plaintiff appeals. Reversed.

The plaintiff is a wholesale dealer in rags. He was accustomed to store rags in the defendant's freight warehouse as they were gathered in, and, whenever he made a sale, to ship them out in car-load lots. On the 28th day of October, 1892, he had a car load of rags in defendant's warehouse, for which he had an order. He went to the foreman of defendant's freight house, notified him that he had a car load ready to be shipped to Kimberly, Clark & Co., at Appleton, Wis., and asked him if he could get a car and load them. The foreman said that it was impossible to get a car that day, but that he would load them the next morning. Plaintiff said, “All right; I will be there to load them.” Plaintiff took no receipt for the goods at that time, because, as he testifies, mistakes had been made at that warehouse in the shipment of his goods, so he was in the habit of being present at the shipment, to see that no mistake was made, and took his receipt then. That same night the warehouse and its contents, including the plaintiff's rags, were destroyed by fire, which was not caused by any fault of the defendant. A verdict for the defendant was directed. From judgment on that verdict the plaintiff appeals.C. H. Hamilton, for appellant.

Winkler, Flanders, Smith, Bottum & Vilas, for respondent.

NEWMAN, J. (after stating the facts).

The question on which the case turns is whether defendant's custody of plaintiff's goods at the time when they were destroyed was the custody of a mere warehouseman or whether it was the custody of a common carrier. If the former, it is not liable; if the latter, it is liable. The rags were originally delivered, in bales, to be kept in the warehouse until further orders. Until such further orders were received, the defendant's responsibility for them was that of a warehouseman only. Upon receipt of orders to ship the goods so in warehouse, the responsibility as common carrier attaches, although the goods remain unmoved in the warehouse. If, without putting them in transit, the carrier, for his own temporary convenience, keeps them in store, still the liability of a carrier...