Tower v. Grocers Supply & Storage Co.

Opinion by Mr. Justice Thompson, The appellant was the owner of a large building used for the storage of goods containing rooms equipped with refrigerating machines for cold storage purposes. A fire originated in the second story and destroyed the entire structure, with its contents. Among the latter were the goods of the appellees which were stored there. The present suit was brought to recover their value. The appellees alleged that their loss was the result of appellant’s negligence in not keeping their goods safely, and in not- insuring them, having agreed to do so. As to the latter, one of the appellees, Miss Tower, testified that when she paid the storage on these goods the assistant in charge of appellant’s office inquired whether she wanted'the goods insured, that she requested that appellant should have it done, and that it agreed to do so. That after the fire she called, and being told these goods were not insured she said, “ I left orders for you to have the goods insured.” The assistant however denies that she gave any order to have them insured. The evidence was therefore for the jury to determine whether the appellant.made an agreement with appellees to obtain for them an insurance upon the goods in question. It is contended by appellant that, as the proofs do not show the essential elements of a parol contract for insurance, no agreement was proved. The [111] appellant was engaged in the storage business, made it a part of such business to effect insurances in companies when requested by its customers to do so, and protected itself for its advances and charges by holding the goods. A contract made for that object therefore would be in the direct line of its business and not one of insurance requiring certain essential elements to constitute it. It would not be a voluntary and gratuitous act, but in fact would be an undertaking in connection with the bailment. Miss Tower testified that the appellant’s representative asked her if she wanted the goods insured, and she replied that she thought they being there insured them. He replied: “ Not unless you leave orders to that effect.” She says that she then gave the order. If this testimony be not successfully contradicted, it shows the course of the business was to obtain insurances for bailors, that appellant so indicated to appellees, who acted upon it, that it accordingly entered into the contract and made it part of its duties to obtain the insurance for which it was to be paid, and for the expenses of which as well as other charges it was to hold the goods. The learned judge therefore properly submitted the evidence in regard to the alleged contract to the jury, and the assignment of error that he refused to charge: “ That the burden is upon the plaintiff to prove that, at the time the alleged agreement was made to insure plaintiff’s goods, the amount of the insurance, the time for which it was insured, the rate of insurance, the premium to be paid, and the risk insured against, all were agreed upon; a want of any of these elements is essential and makes the contract an incomplete one and the plaintiffs cannot recover,” is not sustained. But there was error in submitting to the jury the question of negligence or want of care. The appellant was a bailee for hire and was bound to exercise ordinary diligence and care. Its liability could only be the result of a failure to exercise such care or diligence. The proofs do not show a want of this care or diligence, nor do they warrant an inference of either. The cause of the fire is not shown and apparently is not known. One witness saw the fire coming out of the second story of the building, and knocked at the front door. The engineer in charge, holding a small torch such as engineers usually have, came towards the door, of which he had no key, and then went back [112] towards the engine room. He subsequently explained to witness that he did so in order to turn off the ammonia tanks, manifestly to avoid an explosion. This witness testified there seemed to be something like grease or butter that was burning and dripping down through the elevator shaft. Another witness testified that the engineer had a light in his hand, stood in the front of the door, hallooed out something and started back. This was the extent of the plaintiff’s proof. On the part of the defendant it was testified there was no inflammable material or fire in the building. One of appellant’s witnesses, an employee, testified that on the evening of the fire, prior to it, he went to the top of the building and had in his hand a little circular oil lamp with a wick out through the top. That when he reached the top of the building he blew it out and descended in the dark to the first floor, where, having placed a cover over the wick of the lamp, left it in his room back of the engine room. Having done so he left the building in the charge of the engineer. The testimony clearly does not justify an inference of negligence, and does not amount to a scintilla. The learned judge therefore erred in refusing to charge : “ There is no evidence in this case showing that the defendant did not exercise ordinary care of plaintiff’s goods. As a bailee for hire, it is not responsible for this accidental loss by a fire which was not caused by its negligence.” This judgment is reversed, and a venire facias de novo is awarded.