241 P. 678 | Wash. | 1925
This action is for the recovery of damages for the loss occasioned by fire of household goods which had been stored in a municipal wharf and warehouse belonging to appellant. Two causes of action were alleged: one for the loss of household goods alleged to be of the value of $1,062.50, delivered to appellant as a warehouseman; and the second, for the loss of a trunk valued at ten dollars, alleged to have been held by the city as a common carrier, by reason of having been delivered to it by a transportation company known as the Navy Yard Route, shortly before the fire, without notice of its arrival having been given to respondent before its destruction.
The amended complaint alleges that the goods were delivered in good condition, and that appellant was unable to return them on demand. The answer alleged that the goods were held in the capacity of warehouseman, that they were destroyed by fire without fault on the part of appellant; and also alleged that it held the trunk in question as agent for the transportation company, it having been delivered to appellant only the night before. The reply was a general denial.
The case was submitted to a jury, which returned a verdict for the full amount claimed in the two causes of action, $1,072.50. Appellant challenged the sufficiency of the evidence; moved for a directed verdict in its favor; for judgment notwithstanding the verdict, and for a new trial.
The arguments to support appellant's contentions are all grouped on the denial of the motion for judgment n.o.v. Respondent, in proving his case, merely proved that the goods were delivered in good condition, and that the city was unable to return them except in *121 a damaged condition, and rested. Evidence was then adduced by appellant under its affirmative answer.
The evidence shows that there was a fire in the warehouse of appellant which damaged respondent's property. It was shown that the fire was of unknown origin. The only explanation given by anyone as to the cause or origin of the fire was that given by the chief of the fire department of appellant, who made an examination at the time of, and immediately after, the fire, that he was of the opinion that the fire was caused by spontaneous combustion.
[1] The law with reference to the liability of warehousemen is well settled. A warehouseman is bound to exercise ordinary diligence only. Colburn v. Washington State Art Ass'n.,
In the last cited case, we said that appellant in that instance did not show the loss to fall within any of the exceptions as to the liability of the bailee upon failure to return the goods, of fire, theft, leakage, or act of God. In this case, appellant brought itself within the recognized exceptions as to liability of a bailee for storage, and comes within the rule stated in the foregoing cases. *122 [2] Respondent contends, however, that that rule as to the exceptions applies only when the fire, theft, or burglary is not due to the negligence of the bailee, and contends further that there was evidence in this case warranting the consideration of the jury upon the facts and circumstances, tending to show negligence on the part of appellant. These elements of negligence are thought to be the following: No special provision for fire apparatus other than one or two fire extinguishers; no one constantly on watch; sailors and others permitted to frequent the outside of the building with girls, and smoking about the premises; insufficient light; public dances held in the upper story above the warehouse.
There is evidence that a watchman made periodic visits during the night to the premises; that there were two fire extinguishers in the warehouse; that the fire originated on the inside of the warehouse in the lower story of the building. There is no evidence that any greater number of fire extinguishers was necessary or would have been effective. There is no evidence that there was any dance in the upper story, or that the fire originated where any dance was held. There is no evidence that the fire was caused by sailors and girls frequenting the wharf outside the premises. The only evidence there is as to the cause of the fire was that it started inside the warehouse, and the only possible explanation for it was that it started from spontaneous combustion. The most that can be said as to the cause of the fire is that it was of undetermined origin.
There is no evidence whatever that the negligence of appellant as a warehouseman had anything to do with the spontaneous combustion, if there was such a thing, or with any possible cause of the fire.
The cases cited by respondent do not apply to this situation. *123
Kingsley v. Standard Lumber Co.,
In Pregent v. Mills,
In Burley v. Hurley-Mason Co.,
In Perry Brothers v. Diamond Ice Storage Co.,
In Glacier Fish Co. v. North Pacific Sea Products Co.,
In Sporsem v. First National Bank of Poulsbo,
In Harland v. Pe Ell State Bank, supra, we emphasized the rule that, when the bailee shows the loss was caused by fire or theft, he is within one of the recognized exceptions as to which exceptions it is necessary for the bailor to go further and prove that as in the Sporsem case, supra, the bailee was negligent in guarding against fire, theft, etc.
In this case there is no evidence whatever that tends to show that anything done or left undone by appellant in housing respondent's goods caused the fire, or would have prevented it. We conclude, therefore, that the motion for judgment n.o.v. should have been granted.
The judgment is, therefore, reversed with instructions to dismiss.
TOLMAN, C.J., ASKREN, MACKINTOSH, and FULLERTON, JJ., concur. *125
