Traders' Compress Co. v. Precure
| Decision Date | 07 October 1924 |
| Docket Number | 14785. |
| Citation | 231 P. 516,107 Okla. 191,1924 OK 884 |
| Parties | TRADERS' COMPRESS CO. v. PRECURE. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Dec. 16, 1924.
Syllabus by the Court.
It is only those persons, firms, companies or corporations who have complied with the provisions of article 2, c. 91, Comp. Stat 1921, or those compresses storing cotton for a specified term, and not milling in transit, which are by such statutory provisions constituted public warehousemen or public warehouses.
Sections 11113 and 11122, Comp. Stat. 1921, requiring a warehouseman to keep stored goods insured for the benefit of the owner thereof, apply only to public warehousemen as defined by the statute, and have no application to private warehousemen.
The Uniform Warehouse Receipts Act (article 3, c. 91, Comp. Stat 1921) deals only with the rights, duties, and liabilities of the parties under the contract of bailment as embodied in the warehouse receipt. The act does not deal with the burden of proof in actions sounding in tort, or with the law of negligence, and has not modified the rules at common law in cases founded on negligence.
By the provisions of the Uniform Warehouse Receipts Act, the warehouseman is made liable for any loss or injury to stored goods caused by his failure to exercise such care in regard to them as a reasonably careful owner of similar goods would exercise, but he is not rendered liable, in the absence of an agreement to the contrary, for any loss or injury to the goods which could not have been avoided by the exercise of reasonable care; and if he fails or refuses to deliver the goods in compliance with a proper demand by the depositor or holder of the warehouse receipt, the burden is upon him to establish the existence of a lawful excuse for such failure or refusal.
In an action by the owner against a warehouseman upon a contract of bailment for the recovery of goods stored, or their value the warehouseman must excuse his failure to deliver the goods in compliance with the contract; this he may do by showing that the goods were lost, and that the loss was due to causes consistent with due care on his part. In such case, where the plaintiff has proven the bailment, a tender of all charges, a demand for the goods, and the warehouseman's failure or refusal to return, a prima facie case has been made out, and it is then incumbent upon the warehouseman to overcome this prima facie case, by showing that the goods have been lost and that he exercised due care to prevent such loss.
Where the owner of stored goods elects to found his cause of action upon the negligence of the warehouseman, instead of upon the contract of bailment, he must recover, if at all, upon proof of the negligence alleged.
Additional Syllabus by Editorial Staff.
Under Const. art. 5, § 57, the subject expressed in the title of an act fixes a limit on its scope.
Appeal from Superior Court, Pottawatomie County; Leander G. Pitman, Judge.
Action by O. K. Precure against the Traders' Compress Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded for new trial.
Ames, Lowe & Richardson, Burford, Miley, Hoffman & Burford, and Abernathy & Howell, all of Oklahoma City, for plaintiff in error.
Goode & Dierke, and Kittie C. Sturdevant, all of Shawnee, for defendant in error.
On November 11, 1921, the cotton compress of the Traders' Compress Company at Shawnee, together with about 9,000 bales of cotton were destroyed by fire. Of this cotton so destroyed, O. K. Precure was the owner of 7 bales which was stored with the compress company, and this action was brought by him as plaintiff, against the compress company as defendant, to recover the value of said cotton, which it was stipulated at the trial, was 12 1/2 cents per pound, amounting to $461.25.
The plaintiff in his petition alleged, in substance, that the defendant was a warehouseman of his cotton, and its destruction by fire while in the custody of the defendant, and based his right of recovery upon the alleged failure of the defendant to insure said cotton for the full value thereof for plaintiff, and upon other alleged acts of negligence on the part of the defendant, in certain particulars as to the construction of the warehouse, and in not providing sufficient equipment and apparatus for extinguishing fires, and insufficient number of watchmen in the nighttime. The defendant answered, denying these allegations, and pleaded other defenses. The reply was a general denial. The cause was tried to a jury, and resulted in a verdict in favor of the plaintiff for the sum of $461.25, to review which this proceeding in error is prosecuted.
Numerous assignments of error are presented, but they all lead to the inquiry of whether the defendant owed the plaintiff the duty of insuring, for his benefit, against loss or damage by fire, the cotton stored with it by him, and whether there was sufficient competent evidence of negligence on the part of the defendant to support the verdict and judgment against it. At common law, in the absence of an agreement expressed or implied, a warehouseman is under no duty to keep stored goods insured. 40 Cyc. 432. There was no allegation or proof of such an express agreement nor proof of facts from which such an agreement could be implied, hence, if the duty to insure rested upon the defendant, it must have been placed there by statute.
The first legislation pertaining to warehouses and warehousemen was passed by the Legislature of 1907-08 (Laws 1907-08, c. 84), and appears as sections 11106 to 11116, inclusive, Comp. Stat. 1921. Said section 11106 provides that:
"All persons, firms, companies or corporations incorporated under the laws of Oklahoma, who shall receive cotton, or broom corn, under the provisions of this article, shall be deemed and taken to be public warehousemen, and all warehouses which shall be owned or controlled, conducted and managed in accordance with the provisions of this article, shall be deemed and taken to be public warehouses. * * * "
Section 11113, supra, requires the owner of each public warehouse for storage of cotton and broom corn to carry insurance on cotton and broom corn against loss by fire equal in amount to the value of 50 per cent. of the actual capacity of said warehouse, and in case of loss to pay when collected to each holder of a receipt three-fourths of the market value of his cotton or broom corn as shown by said receipt on the date said cotton or broom corn was destroyed. Section 11116, supra, provides that nothing in the act contained shall apply to private warehouses.
In 1915, the Legislature passed an act entitled "An act to make uniform the law of warehouse receipts." Sess. Laws 1915, p.
668 (sections 11123 to 11183, inclusive, Comp. Stat. 1921). Section 11143, supra, renders a warehouseman liable for any loss or injury to the goods caused by his failure to exercise such care in regard to them as a reasonably careful owner of similar goods would exercise, and section 11149, supra, gives the warehouseman a lien for all lawful claims for money advanced, interest, insurance, transportation, labor, weighing, co-operating, and other charges and expenses in relation to such goods, but these provisions impose no duty upon a public warehouseman to insure stored goods against loss or damage by fire. The section of the statute which gives a lien was merely intended to be for the protection of a warehouseman where he procures insurance in accordance with an agreement with the owner so to do, and puts the expenses of such insurance upon the same standing as the charges for storage. Farmers' Union Warehouse Co. v. Sturdivant, 127 Ark. 453, 192 S.W. 377.
The next legislation upon the subject is contained in sections 11117 to 11122 inclusive, Comp. Stat. 1921, which is the act of the Legislature approved April 5, 1919 (Laws 1919, c. 270), entitled: "An act defining public warehouses and warehousemen, and prescribing duties, and declaring an emergency." Section 1 of this act (section 11117 of the Statutes) provides that all persons, firms, companies or corporations who shall receive cotton, tobacco, wheat, oats, rice, or any kind of produce, wares, merchandise of any description, or personal property in store for hire under the provisions of this act, shall be deemed and taken to be public warehousemen, and all warehouses which shall be owned or controlled and managed in accordance with the provisions of this act shall be deemed and taken to be public warehouses, etc.
Section 2 of the act (section 11118 of the Statutes) requires the owner, proprietor, lessee or manager of any public warehouse, before transacting any business in such public warehouse, to procure from the county clerk of the county in which the warehouse is situated, a certificate that he is transacting business as a public warehouseman under the laws of the state of Oklahoma, and such certificate shall give authority to carry on and conduct the business of a public warehouse within the meaning of the act, and the person receiving such certificate shall file with the county clerk granting the same, a bond payable to the state of Oklahoma in the sum of $5,000, conditioned for the faithful performance of his duty as a public warehouseman.
By section 3 of the act (section 11119 of the Statutes), a warehouse commission was created, whose duty it was to supervise the bonded warehouses of the state, and section 4 of the act (section 11120 of the Statutes) conferred upon the warehouse commissioners the authority to establish a public or state warehouse under the regular fee system at all points having compresses, and provided that all compresses storing cotton for a specified term, and not milling in transit should...
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