William H. Moore & Co. v. State
| Decision Date | 20 February 1878 |
| Citation | 47 Md. 467 |
| Parties | WM. H. MOORE & CO. v. THE STATE OF MARYLAND. |
| Court | Maryland Court of Appeals |
BAILMENT.
APPEAL from the Circuit Court for Anne Arundel County.
In accordance with the requirements of the inspection laws of the State of Maryland, certain owners of tobacco stored their tobacco in the State Tobacco Warehouses, Nos. 1 and 2 situated in the City of Baltimore. The warehouses and the tobacco therein stored were totally destroyed by fire January 7th, 1875, and the owners claimed that the State of Maryland was responsible to them for the loss of such tobacco.
The General Assembly, in order to determine whether the State was liable to the said owners for the value of the tobacco thus destroyed, and to afford them an opportunity, if it was liable, to ascertain the amount of their actual loss, passed the Act of 1876, ch. 370.
The plaintiffs, proceeding under this Act, brought suit in the forum designated by the Act, to recover the amount of such loss.
The declaration contained two counts.
In the first count, they alleged that the State, on the said January 7th, 1875, and prior thereto, "was the owner of certain warehouses in the City of Baltimore, used and kept for the storage, safe-keeping and inspection of tobacco, brought in hogsheads to the City of Baltimore, for sale; and having and keeping said warehouses for the purpose aforesaid" * * * "received from the plaintiffs * * * into said warehouses, for inspection, storage and safe-keeping, a large quantity of tobacco of the plaintiffs, of great value, packed in hogsheads, and intended for sale, and to be carried out of Maryland; and then and there undertook and agreed with the plaintiffs to inspect and safely to keep and store said tobacco, until the same should be demanded of it * * * by the plaintiffs, and to deliver the same to the plaintiffs on demand; but notwithstanding the said undertaking and agreement, and while said tobacco was stored, as aforesaid in said warehouses, and was in the possession of the State of Maryland, * * the said State of Maryland allowed the said tobacco to be, and the same was, totally destroyed by fire."
In the second count, the plaintiffs set forth the same case, with the single difference, that instead of the allegation that the "State of Maryland allowed the said tobacco to be, and the same was, totally destroyed by fire," the second count contained the averment, that "the said tobacco, in consequence of the negligence and want of proper care and attention of the said State of Maryland, was totally destroyed by fire."
The State of Maryland entered a general demurrer to the declaration, which was sustained by the Court below, and judgment being given for the defendant on the demurrer, the plaintiffs appealed.
The cause was argued before BARTOL, C.J., BOWIE, ALVEY, ROBINSON and STEWART, J.
Bernard Carter, John P. Poe and Frank H Stockett, for appellants.
The question for decision here is, does either count in the plaintiffs' declaration set forth a good cause of action?
We shall confine our discussion to the second count in the declaration, because, if this count is good, the judgment must be reversed.
This count alleges in substance--
1st. That the State of Maryland owned warehouses in the State of Maryland, which it used and kept for the storage, safe-keeping and inspection of tobacco.
2nd. That the State received into said warehouses the tobacco of the plaintiffs for inspection, storage and safe-keeping, and undertook with the plaintiffs to inspect and safely keep and store said tobacco, until the same should be demanded by the plaintiffs.
3rd. That while so stored under said undertaking, and in its possession under said contract, it was totally destroyed by fire, in consequence of the negligence and want of proper care and attention of the State of Maryland.
The count therefore treats the State of Maryland as an ordinary warehouseman, and charges that, after making a contract of storage and to safely keep the tobacco, the latter was lost in consequence of the " negligence and want of proper care and attention on the part of the warehouseman."
1. Treating the status of the State in regard to its warehouses, and the obligations it assumes to persons placing goods on storage in said warehouses, as the same as that of any private warehouseman, it is clear this count of the declaration sets forth a good cause of action.
2. A warehouseman is bound to exercise ordinary care and diligence in the keeping of the goods entrusted to him, and is responsible if the loss occurs by his negligence. Balt. & O. R. R. Co. vs. Schumacker, 29 Md., 168; McCarty vs New York and Erie R. R., 30 Penn. State, 247; Wharton on Negligence, 569, 573, 576; Story on Bailments, 444.
3. The State of Maryland therefore, in order to sustain her demurrer, must show that for some reason her liability as warehouseman is different from that of ordinary warehousemen. Is such the case? We respectfully submit it is not.
4. In considering this question we are to remember that a sovereign State may make a contract, or come under obligations by reason of having assumed to discharge certain duties, as well as an individual.
It is true, the State cannot be sued for the non-performance of its contracts nor for the failure to discharge its obligations, but this is not because it does not in justice owe the money, but because it is assumed that the State can do no wrong, and that she is ready at all times to remedy and redress of her own accord and voluntarily the wrongs of her citizens.
5. Though ordinarily in determining a demurrer to a declaration, the Court will look only to the language of the same to see if a good cause of action is stated, and though undoubtedly considering the language of the second count of the present declaration, in connection with the settled law above quoted, relating to the obligations of warehousemen, the declaration does state a good cause of action against the State of Maryland, we shall, for the purpose of this argument concede, that the Court will consider the laws of the State of Maryland, in reference to tobacco warehouses, in determining the question raised by the demurrer, in order to see whether there is anything in those laws to show that the State of Maryland, as owner of said warehouses, and receiver into them of the said tobacco for inspection and storage, instead of incurring the ordinary obligations and responsibilities of a warehouseman, incurs none at all; because, unless this latter proposition can be maintained, the demurrer certainly cannot be sustained.
6. Our proposition is, that the State having become a warehouseman of the tobacco, assumes the ordinary obligations of warehousemen.
"Whenever a State becomes a partner in any trading concern," (and a fortiori, when the whole concern or business belongs to her,) Bank of United States vs. Planters' Bank, 9 Wheat., 907.
This is the language of Chief Justice MARSHALL, speaking for the Supreme Court of the United States. See also 11 Peters, 324.
And in England the same doctrine prevails. Duke of Brunswick vs. King of Hanover, 2 House of Lords Cases, 24; Same Case, 6 Beav., 5-7; Gladstone vs. Musurus, 9 Jurist, N. S., 76.
Unless, therefore, there is something in the Maryland legislation relating to the tobacco warehouses to show to the contrary, it is plain upon the principle of these cases, that when the State of Maryland enters into the warehouse business, she descends to the level with an ordinary warehouseman, and assumes his liabilities.
To escape this conclusion, there must be found such language in the Maryland legislation relating to the tobacco warehouses as manifests such a clear determination and intention not to assume any obligation as warehouseman to the owners of the tobacco there stored, as that the law will imply that such absence of liability must have been well understood by such owners.
7. We submit there are no such provisions; but on the contrary, provisions which should hold the State to a greater measure of liability than that to which ordinary warehousemen are held.
These provisions will be found in Supplement, 1861 to 1867, Article 4, Title ""City of Baltimore," pages 427 to 443, and Act of 1872, chapter 36.
First. By these provisions (Article 4, section 535, Supplement, 1861 to 1867, p. 439,) no tobacco raised in Maryland can be exported unless taken to the warehouses, and there inspected, passed and marked, as required by law.
By section 503, (same Article,) and section 10, Act of 1872, chapter 36, all tobacco delivered for inspection at said warehouses is directed to be taken into said warehouses and receipted for.
It will be thus seen that the delivery into said warehouses is not voluntary, but compulsory, as a preliminary to a sale out of the State; and is well known, all Maryland tobacco goes abroad.
Second. The State charges for storage, outage and all incidental expenses, such as cooperage, &c., (Article 4, Supplement, sections 520, 521,) and sells scraps, &c., and receives the proceeds, (same section 522;) and sells the tobacco for her charges, if not paid. (Sections 523, 524.)
The entire provisions are those of a regular warehouseman.
8. Does it not inevitably follow, therefore, that the State is responsible for negligence, it having been shown that there is nothing in the statutes creating the tobacco warehouse system to negative this liability?
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