Whiting v. Chi., M. & St. P.R. Co.

• Decision Date: 20 February 1888
• Parties: Whiting v. Chicago, M. & St. P. R. Co.
• Court: South Dakota Supreme Court

37 N.W. 222

5 Dak. 90

Whiting

v.Chicago, M. & St. P. R. Co.

Supreme Court of the Territory of Dakota.

February 20, 1888.

Appeal from district court, Lincoln county.

Charles W. Whiting brought an action against the Chicago, Milwaukee & St. Paul Railway Company as warehousemen for the recovery of goods consumed by fire. Verdict for plaintiff. Defendants appeal.A. H. Barton and H. H. Field, for appellants. Frank R. Aikens, for appellee.

PALMER, J.

This action was brought by plaintiff to recover the value of certain household goods, shipped from Chicago via the defendant's railroad line, to Canton, Dak., in August, 1885. The goods were received by defendant's agent at Canton, and by him placed in defendant's depot or warehouse, where, on the 19th of August of the same year, they were destroyed by fire, the same fire consuming the defendant's depot and warehouse, with all its contents. The action is brought against the defendant as warehousemen. No question was made as to the value of the property. The only evidence in the case tending to show the character of the bailment at the time the goods were destroyed (whether as a bailment for hire, or gratuitous) was from the plaintiff himself, who testified, in substance, as follows: “I know nothing of the origin of the fire. Cannot tell when the goods arrived at the depot. Think I went to depot on the 14th of August; the goods were there at that time. I saw Goetz, the station agent, and told him that my house which I had rented was not yet vacated, and I came to see if I could make some arrangement about storing the goods. I did not know just how long I would want him to take care of them for me, but perhaps a number of days. He said that they were quite busy now. He did not know just how it would be about it, but said he would take care of them, and that he would notify me in case he had to have the room. I think he said the freight was nearly twelve dollars; he could not find the freight bill then. I have not paid the freight yet. I told him it was of no consequence at all. I was ready to pay it, so I did not learn the exact amount. I saw the agent the next day; also the goods. I saw that they had not been put in very good shape. I asked him about it. He said that they got out some goods back of them that day, and that he would store them up in good shape for me, and in case he had to have the room he would notify me. I told the agent it would be an accommodation to me for him to store them. I knew the accommodation would cost me something; I supposed it would. There was nothing said as to any compensation between me and the agent,-no amount agreed upon. I made no promise to pay him anything. I did not agree to pay him anything. He did not tell me he should charge me anything. He told me at the time they were short of room at the depot. It was quite an accommodation. I told him I would have to pay rent somewhere else. I remember he agreed to keep them. There was nothing said as to pay. I did not ask the agent what the amount would be. I expected to pay the freight when I got the goods. I never paid any charge for storage to the agent. He never presented any bill. Nothing was said about it at all. I considered the storage of them there an accommodation to me, as I learned room was very scarce. I knew I had to rent a room somewhere for storage. It would be an accommodation, and would save me drayage.” Did this constitute a gratuitous bailment or deposit, quoere. The trial...