Voyt v. Bekins Moving & Storage Co.

• Decision Date: 25 November 1941
• Citation: 169 Or. 30,119 P.2d 586
• Parties: VOYT v. BEKINS MOVING & STORAGE CO.
• Court: Oregon Supreme Court

119 P.2d 586

169 Or. 30

VOYT v. BEKINS MOVING & STORAGE CO.

Supreme Court of Oregon

November 25, 1941

Appeal from Circuit Court, Multnomah County; Arlie G. Walker, Judge.

Action by Natalie Allien Voyt against the Bekins Moving and Storage Company to recover for loss of valuable chattels intrusted to defendant for safekeeping. Judgment for plaintiff, and defendant appeals.

Affirmed.

This is an action by the plaintiff as bailor against the defendant corporation as bailee wherein the plaintiff seeks damages for loss of valuable chattels entrusted to and stored by the defendant for safekeeping and which were stolen from the defendant's warehouse by third persons unknown.

Since questions of pleading and practice are involved it is necessary to set forth portions of the complaint. The plaintiff alleges: "*** the defendant accepted from the plaintiff and promised and agreed to keep safe and to store in a secure vault at its depository at 731 Northwest Flanders Street in the city of Portland, Multnomah County, Oregon, and to release and deliver to the plaintiff at said place upon her request and demand, and upon the surrendering of the warehouse receipt issued therefor, the following described personal property, to-wit: ***."

Then follows a description of the contents of the trunk containing sterling silver of the alleged value of $8,000. The complaint continues: "And as a part of said contract the defendant unconditionally guaranteed the plaintiff to keep said property safe and to return the same to the plaintiff upon demand, as above stated, and to use such a degree of care and diligence in the storage and preservation thereof as might be necessary so to do."

It is undisputed that all charges made by the defendant were paid and that the goods were stolen while in defendant's custody. Mutilated portions of the sterling silver were recovered by the police and were of the admitted value of $54. The complaint alleges further: "That the loss of said property so stolen from the defendant is the proximate result of the carelessness and negligence of the defendant and of its breach of said contract of storage in the following particulars, to-wit: ***."

In eight separate specifications the complaint then alleges negligence of the defendant in the manner of keeping and protecting the silver, as, for example:

"That said defendant, in spite of its promise to keep said valuable personal property in a secure storage vault negligently and carelessly stored the same in an unprotected room enclosed only with wooden partitions and doors in said building on West Burnside Street."

Other allegations are to the effect that the defendant negligently failed to provide a night watchman for their unsafe and unprotected warehouse and the like. The complaint concludes "That by reason of the negligence of the defendant and breach of its contract, as aforesaid, the plaintiff has been damaged ***."

The defendant moved to strike the complaint on the ground that two causes of action, one in tort and one in contract, were improperly joined. The motion was denied. The defendant demurred on the same ground and the demurrer was overruled. The defendant then answered over denying the allegations of the alleged contract and of negligence and affirmatively alleging that on or about August 16, 1937, plaintiff tendered to defendant certain goods, the "contents of which were and are unknown to the defendant," and that on or about said date plaintiff entered into a contract of storage "said contract being contained in warehouse receipt," a copy of which was attached.

The answer further alleges the fact of the larceny of plaintiff's chattels by third persons. As a further partial defense the defendant relied upon certain provisions of the warehouse receipt and alleged as follows: "That by said contract it was agreed by and between the parties thereto, to-wit, plaintiff and defendant, inter alia, that in consideration of the rate of storage charged, the valuation of any piece or package or its contents stored thereunder should be and was limited to the sum of $10.00 per hundred pounds, unless the value thereof was made known at the time of storage and unless a proportionately higher rate of storage be paid thereon. Plaintiff did not declare or make known any higher valuation than as above stated."

It was alleged that the trunk of silver weighed not to exceed 250 pounds, and that therefore the "plaintiff agreed to a valuation on said trunk and its contents of not to exceed $25.00." The provisions of the warehouse receipt, so far as material here, were as follows:

"Bekins Van & Storage Co.

Warehouse Receipt and Contract

8/16/37

"Received for the account of Mrs. Voyt From Roseburg, Ore. the goods enumerated in the schedule annexed for storage upon the following terms and conditions:

*****

"The responsibility of the above Company for any piece or package and its contents is Limited to Ten Dollars per hundred pounds, unless the value thereof is made known at the time of storage and receipted for in the schedule an additional charge will be made for higher valuation.

"The responsibility of the above Company for storage and handling is limited to ordinary diligence.

*****

"This Warehouse Receipt and a Written Order shall be presented when any goods are to be withdrawn. ***"

One hundred thirty-seven separate items were listed, among which appears item 20, "trunk silver."

The reply was a general denial, except as admitted in the complaint. Verdict and judgment went for plaintiff in the sum of $4,184.50. There was substantial evidence supporting the plaintiff's allegations of negligence in the care of the silver. If therefore it was proper under the pleadings and proof to submit the case upon the issue of negligence and if there was no reversible error in other respects the judgment must be affirmed.

ROSSMAN and RAND, JJ., dissenting.

George E. Birnie, of Portland (Gunther F. Krause, of Portland, on the brief), for appellant.

Charles W. Redding, of Portland, and Paul E. Geddes, of Roseburg (Hallmark & Geddes, of Roseburg, and Charles W. Redding, of Portland, on the brief), for respondant.

Before KELLY, C.J., and BAILEY, LUSK, RAND, ROSSMAN, and BRAND, JJ.

BRAND, Justice.

The motion to strike and the demurrer upon the ground that two causes of action were improperly joined were both overruled and the defendant answered over. By so doing it waived any error that may have been committed in those rulings. Craft v. Flesher, 1936, 153 Or. 348, at page 350, 55 P.2d 1101, 56 P.2d 1141; Scandinavian-American Bank v Wentworth Lumber Co., 1921, 101 Or. 151, 199 P. 624; Crane v. School District, 1920, 95 Or. 644, at page 651, 188 P. 712; Stanchfield Warehouse Co. v. Central R. of Oregon, 1913, 67 Or. 396, 400, 136 P. 34; Olds v. Cary, 1886, 13 Or. 362, 10 P. 786; Wells v. Applegate, 1885, 12 Or. 208, 6 P. 770; Green v. Taney, 1884, 7 Colo. 278, 3 P. 423; Diamond Rubber Co. v. Harryman, 1907, 41 Colo. 415, 92 P. 922, 15 L.R.A.,N.S., 775, at page 783. This disposes of the defendant's first and second assignments of error.

Defendant's third assignment is to the effect that the court erred in refusing to compel the plaintiff to elect whether she would proceed upon contract or tort. As a general proposition of law we concur in defendant's contention that an action in contract cannot be joined with an action in tort. Such joinder would often involve substantial inconsistencies as to issues, evidence admissible and remedy. The difficulty arises in the application rather than in the statement of the rule. In the case at bar plaintiff had but one right of recovery arising from one transaction, to-wit, the loss of the silver by reason of defendant's conduct relative to its care. There were however, three legal theories or grounds of action which were conceivably available to the plaintiff: She might assert the facts giving rise to defendant's common-law undertaking as a warehouseman together with a breach of that undertaking in an action of assumpsit. She might allege a special contract imposing upon defendant duties in excess of those imposed upon a warehouseman at common law, and she might then sue in contract upon the alleged breach of the special provisions. This she might do without characterizing the defendant's conduct as negligent. Lastly, she could bring an action upon the case, asserting by way of inducement the undertaking or agreement of defendant for the purpose of establishing a duty and then asserting the negligent failure to perform the same. In the case at bar the complaint contains some allegations appropriate to each of the three theories or grounds of action. The filing of the complaint cannot therefore be deemed an election of any theory as was the case in Bank of California Nat. Ass'n v. Schmaltz, 1932, 139 Or. 163, 9 P.2d 112. But it is clear that if plaintiff proved a case upon any one of the three theories, the amount of recovery would be the same, namely, the value of the stolen silver.

As indicated there were some allegations in the complaint tending to show that plaintiff claimed the existence of an express contract for vault storage with an unconditional guaranty of safe return, provisions which involved obligations in excess of the common-law duty of due care, but at the end of plaintiff's case the court ruled out the theory of unconditional guaranty and announced that the case would be submitted "entirely upon the proposition of whether or not Bekins used the care which the uniform warehouse receipt act requires." That act provides: "A warehouseman shall be 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...