Willett v. Rich
| Decision Date | 06 July 1886 |
| Citation | 142 Mass. 356,7 N.E. 776 |
| Parties | WILLETT and another v. RICH and another. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
R.M. Morse, Jr., for defendants.
L.S Dabney, for plaintiffs.
This is an action of contract against the defendants as warehousemen. The declaration contains four counts; but as the third and fourth counts are the same as the first and second, except that they apply to a different lot of goods, we need consider only the first two counts.
The first count alleges that the defendants, as warehousemen received goods of the plaintiffs, and agreed to keep the same safely, and to deliver the same to the plaintiffs, upon demand, in the same order and condition as when received that the goods were damaged while in the custody of the defendants; that they delivered them to the plaintiffs thus damaged and injured, and not in the same condition as when received, and thereby broke their contract. The second count alleges that the defendants, as warehousemen, received goods of the plaintiffs, and agreed to store and keep the same safely, and to deliver the same to the plaintiffs upon demand; that they did not keep the same safely, but so negligently conducted themselves that, through the negligence of the defendants and their servants, the goods were injured. The case was tried apparently upon the second count. The injury to the plaintiffs' goods was caused by the fall of the warehouse, and the only ground upon which they claim the right to recover was that the warehouse was not properly constructed, and that the defendants were negligent in not using reasonable care and diligence in examining and watching their warehouse, and ascertaining its condition. After the evidence was all in, the defendants asked the court to instruct the jury that the burden of proof was on the plaintiffs to show that the injury and damage occurred through the neglect of the defendant, or those in their employ, to use ordinary care in regard to the building. The court refused this ruling, and instructed the jury that the burden of proof was on the defendants to show that such injury and damage occurred without their fault, or the fault of those in their employ; to which refusal and ruling the defendants duly excepted.
The fundamental rule as to the burden of proof is that whenever the existence of any fact is necessary in order that a party may make out his case, or establish a defense, the burden is on such party to show the existence of such fact. In Stephens on Evidence the rule is stated to be that "whoever desires any court to give judgment as to any legal right or liability dependent on the existence or non-existence of facts which he asserts or denies to exist, must prove that those facts do or do not exist." Steph.Ev. (Amer.Ed.) 175.
The test of the question before us, then, must be the further question, whether the existence of the fact of negligence on the part of the defendants is necessary to create a liability for a breach of their contract. This depends upon the character of the contract which, by implication of law, the warehouseman enters into when he receives goods for storage. It is clear that this contract is not such a one as is set out in the first count of the plaintiff's declaration. He does not agree that he will keep them safely, and, on demand, deliver them in the same order and condition as when received by him. This would make him an insurer of the goods against all damage by accidents, deterioration, or any other cause. But the authorities clearly show that the implied undertaking of the warehouseman is not that he will at all events keep the goods safely, but that he will use ordinary care and diligence in keeping them. Thomas v. Boston & P.R. Corp., 10 Metc. 472; Lamb v. Western R. Corp., 7 Allen, 98; Cass v. Boston & L.R. Co., 14 Allen, 448; Gay v. Bates, 99 Mass. 263; Roberts v. Gurney, 120 Mass. 33; Aldrich v. Boston & W.R. Co., 100 Mass. 31; Lane v. Boston & A.R. Co., 112 Mass. 455. Unless he fails to use due care in keeping the goods, he has not broken his contract, but has done all that he agreed to do.
Suppose a plaintiff, in a case like the one before us, should prove that he had deposited goods with the defendant as a warehouseman; that they were delivered to him in a damaged condition; and should admit that the defendant had used due care, and the goods were damaged without any fault on his part,--it could hardly be contended that the defendant was liable. In such a case the existence of some negligence on the part of the defendant is an essential element of the plaintiff's case. He cannot ask the judgment of the court in his favor, unless such negligence exists, and we cannot logically escape from the conclusion that, therefore, the plaintiff must allege and prove this fact. We are therefore of the opinion that in the case at bar the jury should have been instructed that the burden of proof was on ...
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