Security Storage & Trust Co. v. Denys

Burke, J., delivered the opinion of the Court. In the year 1907 the appellee, who is a clergyman of the Protestant Episcopal Church, was rector of St. Marys’s Church at Roland Park, Baltimore county. His health was bad, and it became necessary for him for that reason to relinquish his work. The appellant is a corporation engaged in the storage business in the City of Baltimore, and the appellee in the summer of 1907 entered into a contract with it whereby it undertook to remove for compensation all his household effects from the rectory and store them in its warehouse. The appellee left Baltimore, and after traveling in this country and in Europe returned in the fall of 1910, and took up his residence in Washington, D. C. When his household effects, which had been in the possession of the appellant during his absence, were delivered at his residence in Washington, under the circumstances hereafter stated, it was found that some of them were badly damaged. It was also discovered that some articles were not delivered, and they seem to have been lost. The appellant denied liability *338 for the loss and damaged articles, and the appellee sued ‘it in the Superior Court of Baltimore City and recovered a judgment for $523.00. The appeal before us was taken by the defendant from that judgment. The amended declaration, upon which the case was tried, contained four counts. The first count charged that the defendant was engaged in the storage business, and that for a consideration it agreed to store and safely keep in its warehouse in Baltimore City certain goods and chattels, etc., of the plaintiff until the same should be called for by the plaintiff, and then safely deliver the same to the plaintiff at his request; hut through its neglect to take proper care of said goods and chattels while the same were in its warehouse, they became greatly broken, damaged, and destroyed and some of them were lost. The second count charged negligence on the part of the defendant in hauling the goods to a railroad car in Baltimore City in pursuance of its undertaking with the plaintiff, and in loading the goods in the car, and as a result of that negligence the goods were damaged and some lost. The third count is here transcribed: • “And for that, in the early part of December, in the year 1910, the defendant, for compensation, undertook with the plaintiff, in compliance with his instructions, to forward to him at "Washington certain goods and chattels, comprising sundry articles of silverware, furniture, china, mats and other household effects belonging to the said plaintiff, which the defendant had on storage in its warehouse in Baltimore City; that the plaintiff positively commanded and instructed the defendant to engage a forty-foot ear on the Pennsylvania Railroad line and ship the said goods and chattels by means of the same to him in Washington; that the defendant acted upon such undertaking, but not regarding its' duty to the said plaintiff, afterwards in the early part of the month of December aforesaid, at Baltimore City aforesaid, in disobedience of the plaintiff’s orders, did not ship the said goods and chattels or any part of the same by means of a forty-foot car on *339 the Pennsylvania Railroad line, but wrongfully and improperly shipped all of said goods and chattels in two smaller cars on the Baltimore & Ohio Railroad line; that by and through the said wrongful and improper conduct of the said defendant and its servants, the said goods and chattels became and were greatly broken, damaged and destroyed, and some of them lost, and the plaintiff sustained great loss thereby.” The fourth count charged that in 1910 the defendant undertook to carry said goods from its warehouse in Baltimore City to the plaintiff’s home in Washington, and that through its negligence in and about the transportation of the goods they were damaged and some lost. The main questions in the case arise under the first and third counts. It will be observed that the cause of action alleged in the first count is the breach of duty by the defendant in its capacity as warehouseman, and in the third count is the defendant’s violation or disobedience of the plaintiff’s directions as to the shipment of his goods. The case was tried upon the joinder of issue upon the general issue pleas. The evidence adduced at the trial on behalf of the plaintiff tended to establish the following facts: That the appellant undertook to remove and did remove all the plaintiff’s household effects from his residence at Roland Park, and that the following articles were lost, and have never been returned, viz: a Bas Relief by Cooper, valued at $250.00; a Bronze Bas Relief; a pair of large black andirons and all of the kitchen utensils, — a coffee grinder, a silver chafing dish, a complete set of china dishes and aluminum cook vessels, and an ice cream freezer; that when delivered, a dining room table, a centre table, a large oak table, sixteen dining room chairs upholstered in leather, carved chairs, brass beds, a leather lounge, carved book cases, desks, chairs, china closets, etc., were found to be seriously damaged; that when these articles were delivered into the possession of the defendant they were in good condition, and were not dam *340 aged in any way; that the injury to the leather lounge had been done at the warehouse of the defendant; that the articles were not removed in a careful manner from the appellees residence by the appellant’s servants; that some of the things had been struck against the walls and banister, and dropped on the floor; but that the removal of the goods by the Security Storage Company of Washington from the railroad’s station in that city to the appellee’s home was carefully done, and there is no evidence in the record to show that any of the losses or injuries complained of could be attributed to the Washington Company; that some pieces of the damaged furniture had been repaired at a cost of $80.00 but that they were not as good after the repairs as they were before the injury. The plaintiff testified that his positive instructions to the defendant were to ship his goods to him in one large car over the Pennsylvania Railroad Company. His explanation of why he wished them shipped in a single car on that road was as follows: Q. In shipping them in a single car is it necessary to have the goods packed ? A. That was my reason for having them sent in one carload as there would be no necessity whatever of having them packed, no reason for having the goods packed; at least that was my experience in having them shipped over the Pennsylvania Road from New York to Philadelphia and from Philadelphia back to New York and from New York to Baltimore; on those three trips they had always gone in one car and they were never packed, except that ordinary care was used in packing them in the car; I saw no reason why they should not come the short distance from Baltimore to Washington under the same circumstances.” The defendant shipped the goods in two smaller' cars over the Baltimore & Ohio Railroad consigned to the plaintiff in the care of the Security and Storage Company of Washington, and sent the bill of lading to that company with instruc *341 tions not to deliver the goods until it was paid the amount of the defendant’s bill, to wit: $200.00. When the furniture reached his home, the plaintiff noticed its damaged condition, and protested against paying the bill; but was compelled to do so before the Washington Company would make delivery. There was no contention that the plaintiff ever directed, assented to, or acquiesced in the shipment in two cars over the Baltimore & Ohio Eailroad. The plaintiff requested William H. Houghton, an experienced and competent expert in every department of the furniture business, to come to his house and examine his goods. He pointed out to Mr. Houghton each piece of the damaged property, which Houghton examined and valued in its damaged condition, and at the trial he testified to the value of each damaged article. He was present in Court and heard the plaintiff’s testimony as to the character of the valued goods and their condition at the time they were delivered to the defendant, and, assuming the plaintiff’s testimony in this respect to be true, he gave his opinion as to their value at the time they were received by the defendant. This testimony was offered to aid the'jury in estimating the damages to the furniture. This testimony was objected to by the defendant and its admission constitutes the second bill of exception. This evidence, upon the authority of many cases, was properly admitted. Negro Jerry v. Townshend, 9 Md. 145; Battler v. Belt R. R. Co., 102 Md. 595; Western Union Tel. Co. v. Ring, 102 Md. 677. After a careful examination of the record, we hold that the plaintiff offered evidence from which the jury could have reasonably found the following facts: First, that the property lost was delivered to the defendant' at the plaintiff’s residence at Eoland Park; secondly, that the furniture which was delivered to the plaintiff at his residence in Washington in a damaged condition was delivered to the defendant at Eoland Park in good condition; thirdly, that the defendant violated the instructions of the plaintiff as to the shipment of the goods in two respects, (a) in shipping them by the *342 Baltimore & Ohio Railroad instead of the Pennsylvania Railroad in one large car; (b), and in shipping in two smaller cars over the Baltimore & Ohio Road; and fourthly, that by the arrangement which it made with the Washington Storage Company the defendant retained possession and control of the goods until they were delivered to the plaintiff; fifthly, that most of the damage was done in the course of transportation over the Baltimore & Ohio line. The defendant offered evidence tending/to show that the missing property was not received at its warehouse in Baltimore, and that much of the property which it did receive was damaged; that it exercised due care with respect to the property while it was in its possession, and was guilty of no negligence in hauling and packing the goods in the cars of the railroad company. Mr. H. Z. Greer, the manager of the defendant’s storage department, in a letter to the plaintiff dated February 18th, 1911, said: “We feel that we have taken more than ordinary amount of care with this shipment, and we do not feel that we are responsible for the damage to any of the pieces, as everything was loaded into the cars in exactly the same condition as they were when received from your residence, and our responsibility ceases when we take the railroad company’s receipt in the form of a bill of lading.” The defendant informed the plaintiff that the goods should be properly packed for shipment, whether in carload lots or not, as household goods were handled roughly in transit; but, as we have stated, this did not accord with the plaintiff’s experience in this regard, and he declined to incur an expense which he regarded as unnecessary. It is admitted by the defendant that the plaintiff instructed it to ship the goods in one large car over the Pennsylvania road. Mr. Hamilton, the secretary of the defendant, testified that he knew Mr. Denys wanted a forty-foot car on the Pennsylvania Railroad, and Mr. Greer testified that the plaintiff “had requested that we obtain from the Pennsylvania Railroad one forty-foot car in which to load his goods.” But Mr. Hamilton further testified that the plaintiff acqui *343 eseed in the shipment of the goods by the Baltimore & Ohio road. His testimony on this subject was that he called the plaintiff on the telephone, and told him that a forty-foot car could not be gotten from the Pennsylvania Bailroad, but that the defendant would try the Baltimore & Ohio Bailroad, and that the plaintiff acquiesced in that arrangement. Mr. Greer, who was present at the time of this telephonic communication testified as follows: “I could tell by Mr. Hamilton’s answers to him about what their conversation must be; he told him at my suggestion after learning we could not secure a forty-foot car over the Pennsylvania road, he asked Mr. Denys if there was any objection to shipping the goods over the B. & O., and we would try to secure a forty-foót car; still judging or at least inferring that Mr. Denys’ answers must have been in the affirmative, Mr. Hamilton said,- ‘all right, we will do that, ship by the B. & O.’ ” Mr. Denys testified that he did not recall such a conversation, and that his correspondence and instructions were to ship by the Pennsylvania road. All the controverted questions of fact were submitted to the jury under the instructions granted. At the conclusion of the whole case the Court granted two prayers — the first and third — on the part of the plaintiff. The first prayer instructed the jury that the defendant was liable to the plaintiff for any loss of or injury to, the goods, consisting of the furniture and other household effects belonging to the plaintiff, and being in the plaintiff’s residence on Boland avenue at the time when the defendant undertook to take said goods on storage, in or about July, 1907, due to the failure on the part of the defendant company, or its agents, to exercise due care in collecting and transporting said goods from plaintiff’s said residence on Boland avenue to the defendant’s warehouse on Borth avenue, or to the failure on the part of the defendant company, or its agents, to exercise due care in the storage, packing and custody of said goods in the defendant’s warehouse, or in any subsequent handling of said goods by the defendant. *344 And if the jury found that the defendant company when called upon by the plaintiff to deliver said goods for shipment failed to deliver any of them, or delivered any of them in a damaged condition which were not so damaged when received by the defendant, or its agents, at the plaintiff’s dwelling on Eoland avenue, then the presumption was that such loss of or injury to said goods was caused by the failure on the part of the defendant company, or its agents, to exercise ordinary care to prevent said loss or injury; and the burden was upon the defendant company to establish the contrary by affirmative proof to the satisfaction of the jury. This prayer was based upon the first count of the declaration, and announced a correct principle of law. A warehouseman, being a mere bailee, is bound only to ordinary care, and is responsible for losses or damages caused by ordinary negligence. This is the measure of responsibility declared’ in the first paragraph of the prayer. The evidence tended to show that the goods, when delivered to the defendant were in good condition and that some of them were re-delivered in a bad condition and that others of them-were lost. In such a state of facts the law presumes negligence on the part of the bailee and throws upon him the burden of accounting for the condition of the -property and of the missing articles. The reason for this rule is that since the bailee is in the possession of the property when the injury or loss occurs he ought to be in a better position to account for the condition or loss of the property than the bailor. “We hold it to more reasonable rule,” said the Court in Cumins v. Wood, 44 Ill. 416, “when the bailor has shown he stored the goods in good condition and they were returned to him in a damaged state, or not returned at all, that the law should presume negligence on the part of the bailee and impose on him the burden of showing he has exercised such care as was required by the nature of the bailment.” Hoeveller et al. v. Myers et al., 158 Pa. St. 461. *345 The third prayer, which is here transcribed, was framed under the third count: “The plaintiff prays the Court- to instruct the jury that if they find from the evidence that the plaintiff, Eev. F. Ward Denys, on or about the 27th of July, 1907, delivered to the defendant, the Security Storage and Trust Company, of Baltimore City, the furniture and other goods mentioned in the declaration, to be kept on storage for compensation, and held subject to the plaintiff’s order. And that the defendant was engaged in the business of keeping furniture and other articles of the kind mentioned in the declaration on storage, and delivering the same upon the orders of the owners thereof, and that the defendant kept the goods in question until on or about the 10th day of December, 1910, when the plaintiff directed the defendant to ship said goods to him, the plaintiff, in the City of Washington, D. C., by, upon and over the lines of the Pennsylvania Eailroad Company, and in a single car of the Pennsylvania E. E. Co. That the defendant accepted the employment, and undertook, for compensation in money, as agent of the plaintiff, to carry out said directions, but that instead of shipping said goods in a single car of the Pennsylvania E. E. Co., it shipped the same on two cars over the lines of the Baltimore & Ohio E. E. Co., without the plaintiff’s knowledge that said goods were going to he shipped in two cars, or over the Baltimore & Ohio Eailroad, and employed the Security Storage Company, of Washington 'City, to take said goods from the cars of the Baltimore & Ohio Eailroad in Washington, and deliver the same to the plaintiff’s house in said city, with instructions that at the time of delivering said goods it, the said Security Storage Company, of Washington, should collect from the plaintiff the amount- of the said defendant company’s hill against the plaintiff for shipping said goods, as well as the amount to he paid to the said Security Storage Company, of Washington. And if they further find from the evidence that said goods were in good condition when they were so delivered to the cars of the said *346 Baltimore & Ohio Railroad Company, and that certain of the said goods were never delivered to the plaintiff at his house in Washington, and others of said goods were delivered in a damaged condition, then the defendant company is liable to the plaintiff for the actual value of the goods not delivered, and also for the difference between the actual value of the goods delivered in an injured condition and their value before said injuries, and also any expense to which the said plaintiff was put as a direct result of said damage and loss, and the verdict of the jury should be for the plaintiff for the amount equal to the actual value of the goods not delivered and also for the difference between the actual value of the goods delivered in an injured condition and their value before said injuries. But if the jury shall find that the plaintiff assented to the shipment of his goods over the Baltimore & Ohio Railroad, and if they find said goods were shipped in two cars of the Baltimore & Ohio Railroad, and were not exposed to greater risks than if they had been shipped in a single car, the defendant can not be held responsible for any loss or injury sustained by reason of the transportation over the Baltimore & Ohio Railroad.” The general rule seems to be well settled that where an agent violates the directions of his principal as to the shipment of goods he assumes the risk of injuries to them occurring in the course of the unauthorized transportation. This liability grows out'of the legal principles governing the relations of principal and agent. 1 Parsons on Con., see. 69; Davis v. Garrett, 6 Bingham, 718; Adams v. Robinson, 65 Ala. 586; Johnson v. N. Y. Cen R. R. Co., 33 N. Y. 610. This is the principle upon which the third prayer was framed. The concluding portion of the prayer, which was an amendment added by the Court, was most favorable to the defendant, and, perhaps, granted it more than it was entitled to ask under the law. The second, third, fifth and sixth prayers which were granted on behalf of the defendant, placed its- whole case *347 before the jury in the most favorable way. While the plaintiff may have some reason to complain of the amendments made by the Court, surely the defendant was not injured thereby. The defendant’s first, fourth, seventh, eighth and ninth prayers “were properly refused. The first prayer asked the Court to direct a verdict for the defendant. Apart from all other considerations, this prayer could not have been granted, because the plaintiff had positively testified that a large leather lounge had been injured while in the defendant’s possession. The fourth prayer was based upon the theory that some of the missing articles had been stolen while in the custody of the defendant. The plaintiff made no such claim in his pleadings, nor did he offer any evidence of theft. Reither did the defendant, and, therefore, it would have been improper to grant this prayer. The seventh, eighth and ninth prayers ignored entirely the assumption of risk by the defendant flowing from its disobedience of the plaintiff’s instructions, and were therefore properly refused. Judgment affirmed, ■with, costs to the appellee above and below.