Voyt v. Bekins Moving & Storage

• Decision Date: 16 June 1942
• Citation: 127 P.2d 360,169 Or. 30
• Parties: VOYT <I>v.</I> BEKINS MOVING & STORAGE CO.
• Court: Oregon Supreme Court

169 Or. 30

127 P.2d 360

VOYTv.

BEKINS MOVING & STORAGE CO.

Supreme Court of Oregon.

Argued September 16, 1941.

Argued on rehearing June 16, 1942.

Affirmed November 25, 1941.

Former opinion adhered to July 7, 1942.

Pleading — Motions and demurrers

1. Where motion to strike out and demur on ground that two causes of action were improperly joined were overruled, defendant by answering over "waived" any error that may have been committed in those rulings.

Action — Contract — Tort

2. Generally, an action in contract cannot be joined with an action in tort.

Appeal and error — Theory of case

3. Where complaint for loss of chattels which had been intrusted to warehouseman contained some allegations appropriate to theory that plaintiff was suing on special contract, to theory that action was one of assumpsit on common-law undertaking of warehouseman and to theory that action was on the case for negligent failure to perform duty, but theory of special contract was withdrawn from jury at warehouseman's request and court in substance compelled an election by instructing jury that the only question before them related to charges of negligence, denying motion to compel plaintiff to elect was not prejudicial error.

Pleading — Contract — Tort

4. Motions to compel plaintiff to elect whether to proceed upon contract or tort are addressed to the sound discretion of the trial court.

Warehousemen — Contract — Duty

5. In action of tort against warehouseman for negligent loss of goods, it is proper to set forth the contract to show the origin of the duty.

Warehousemen — Theory of case

6. Where complaint for loss of chattels which had been intrusted to warehouseman contained some allegations appropriate to theory that action was based on special contract, to theory that action was one of assumpsit on common-law undertaking of warehouseman and to theory that action was an action on the case for negligent failure to perform duty, but court submitted the case to the jury as an action ex delicto for negligence and at the warehouseman's request withdrew allegations of special contract, refusal to direct verdict for warehouseman on ground that plaintiff failed to introduce competent evidence supporting the contract which she alleged in the complaint was not error.

Warehousemen — Common law duty

7. A warehouseman's duty at common law is that of ordinary or reasonable care.

Warehousemen — Common law liability

8. Plaintiff suing on common law liability of warehouseman need not plead or introduce in evidence warehouse receipts and if there is a special contract restricting common law liability of warehouseman it devolves upon the warehouseman to allege and prove it.

Warehousemen — Regulation

9. The general business of maintaining a warehouse and warehouse facilities for storage of general goods is affected with a public interest and may be regulated by law.

Contracts — Warehousemen — Negligence

10. Contracts of warehouseman purporting to limit amount of recovery against it for its own negligence should be carefully scrutinized in the light of public policy.

Contracts — Warehousemen — Negligence

11. A warehouseman cannot by special agreement validly stipulate against liability for loss of property intrusted to it if occasioned by its own negligence.

Contracts — Warehousemen — Responsibility

12. Bailor and warehouseman may under certain circumstances enter into a contract stipulating value of goods intrusted to warehouseman if the contract is fairly and honestly made as basis of warehouseman's charges and responsibility and in event of warehouseman's negligence such agreement, if valid, will bind the bailor to the agreed valuation of his goods.

Warehousemen — Agreed valuation of goods

13. Where warehouseman was notified that steamer trunk bearing label "For storage in safety vaults" contained sterling silver worth thousands of dollars, and that bailor wanted the trunk placed in a vault and warehouse receipt, containing agreed valuation provision, was not sent to bailor until about two weeks after the goods had been accepted by the warehouseman and bailor was never requested to and did not sign the warehouse receipt, the provision concerning agreed value was invalid.

Warehousemen — Limitation of liability

14. In action by bailor against warehouseman for loss of goods, it was incumbent on warehouseman to allege and prove under law of contracts the limitation upon which it relied and to show consideration and a meeting of minds upon the bargain.

Warehousemen — Contracts

15. Where warehouseman was notified that trunk bearing label "For storage in safety vaults" contained sterling silver worth thousands of dollars, and bailor did not receive warehouse receipt containing provision concerning agreed value until about two weeks after goods had been accepted by warehouseman, in action against warehouseman for loss of the silver, evidence was insufficient to establish meeting of minds on the provisions regarding agreed valuation.

Warehousemen — Contracts

16. A warehouse receipt ordinarily constitutes the contract between the parties.

Warehousemen — Contracts

17. The right to insert in warehouse receipt terms and conditions other than those required by statute does not give to such terms the force of contract unless the minds of the parties can be fairly said to have met thereon.

Warehousemen — Contracts

18. If a warehouse receipt contains only the provisions required by statute, the bailor is presumed to know the contents thereof and to consent thereto, but if warehouseman elects to insert additional provisions in excess of statutory requirements, the question of consent thereto should be determined by the ordinary law of contracts.

Warehousemen — Warehouse receipt — Contracts

19. A warehouse receipt, together with additional terms inserted therein by warehouseman, may constitute a contract between the parties, but the statutory permission to insert additional terms does not in and of itself render such additional terms binding as a contract unless there is consideration therefor and the minds of the parties meet thereon.

Warehousemen — Construction

20. Uniform construction under the Uniform Warehouse Receipts Act is desirable, but uniformity of decision is a virtue only when based on similarity of fact.

Warehousemen — Warehouse receipts

21. Where warehouseman was notified that trunk bearing label "For storage in safety vaults" contained sterling silver worth thousands of dollars and was notified that bailor wanted trunk placed in vault and bailor did not receive warehouse receipt containing provision concerning agreed value until about two weeks after silver had been accepted by warehouseman and bailor never signed the warehouse receipt which was required to be presented in event

the goods were withdrawn, bailor's mere retention of the warehouse receipt did not manifest an acceptance of the provision concerning agreed value.

Warehousemen — Rates — Negligence

22. Where warehouseman was given actual notice of substantial value of sterling silver delivered to warehouseman for storage, the warehouseman had duty in alternative either to list the silver at a known higher value at an appropriate storage rate, thereby subjecting itself to liability as at common law for the higher value thereof in case of negligent loss, or if it chose to propose in its warehouse receipt that the goods be stored at a nominal agreed value of $10 per hundredweight, then it should have brought home to bailor not only the rate of charge but also that such rate was lower rate to be charged in consideration of bailor's assent to an agreed low valuation of the goods.

Warehousemen — Warehouse receipts

23. An alleged agreement between bailor and warehouseman fixing at $25 the value of silver actually worth $4,184.50 was so disproportionate that it would amount in fact to a contract impairing the obligation of the warehouseman to exercise due care, and thereby violate statute governing right of warehouseman to insert additional terms in warehouse receipts, unless the warehouse man, knowing the substantial value, brought home to bailor not only the rate to be charged but also that it was a reduced rate to be applied as part of a bargain in which the bailor was to agree to the extraordinary low valuation.

Warehousemen — Rates — Limitation of value

24. Provision of warehouse receipt that in consideration of the rate of storage charged, the valuation of any package or its contents stored thereunder should be and was limited to the sum of $10 per hundred pounds, unless the value thereof was made known at the time of storage and unless a proportionately higher rate of storage was paid thereon was invalid since the provision was not sufficiently specific, in that it did not state that the rate charged was based on the $10 limitation of value.

Warehousemen — Contracts

25. A valid contractual provision in warehouse receipt regarding agreed value fairly arrived at is binding notwithstanding negligent loss of goods by warehouseman.

Warehousemen — Instructions — Negligence

26. In bailor's action against warehouseman for loss of sterling silver through negligence of warehouseman, instruction that provision of warehouse receipt regarding agreed value of goods was not applicable to any negligent act and that if warehouseman was

negligent and negligence caused loss, jury could not apply the provision was erroneous, but the error was not prejudicial where the provision regarding agreed value was invalid.

ROSSMAN and RAND, JJ., dissenting.

Warehousemen — Jury question

27. Where warehouseman was notified that steamer trunk bearing label "For storage in safety vaults" contained sterling silver worth thousands of dollars, and that bailor wanted the trunk placed in a vault, and warehouse receipt, containing agreed valuation provision limiting warehousemen's liability to $10 per hundred pounds, was not sent to bailor until about two weeks after goods...