77 W. Va. 611 | W. Va. | 1916
The judgment for plaintiff, here complained of, is based upon a finding by the trial court acting ill lieu of a jury, by consent, of the parties, upon a statement of facts agreed to.
The right of the controversy depends largely upon the law of bailment. The action was brought to recover the value of two traveling trays or telescopes and their contents, which were lost after having been placed in the care and custody of the defendant’s agent, by an agent of the plaintiff, for carriage, as baggage, from some point in the City of Charleston to the station of the Chesapeake and Ohio Railway Co. in that city. The defendant, doing business as City Taxi Cab
A claim check was given for each of the three pieces, reciting that the Taxi Cab Co. was “C. & 0. and K. & M. Railway Bonded Transfer Co., with privilege to check baggage from house or hotel to destination.” The baggage was carried to the station and each of the three pieces placed on the platform thereof, before the arrival of train No. 8, and was ready for delivery to the plaintiff when that train arrived. At some time of the afternoon of that day and before the arrival of train No. 8, Burdett, the plaintiff’s agent, altered his plans and decided to go west instead of east, and was not at the station to take the train mentioned. Nor did he advise the defendant of this fact, or give him any direction as to the disposition or custody of the baggage. He relied upon the defendant to hold it until called for by him and to deliver it to him upon the surrender of the claim checks held by him. Nor did the defendant or his agent remove the baggage from the station platform. It is known to have remained there until 8 o’clock in the evening, when the defendant’s agent who had taken charge of it at the railway station, directed the attention of defendant’s night man to the parcels, which then still had the checks attached to them. The next morning,- Burdett appeared and called for his baggage; and, on the surrender of the check therefor, the trunk was delivered to him by the ' defendant’s agent and he was informed that the other two pieces had been lost. The platform of the station, on which the property was deposited, was open and unenclosed. What became of the two lost pieces is not disclosed by the statement of facts.
In the transportation of the baggage from the point at which it was received, to its destination, the defendant acted
There was no written contract between the parties. The claim checks did not constitute contracts. They were in the nature of receipts and constituted evidence of delivery of the articles to which duplicates thereof were attached and of the ownership and identity of the parcels. There was an express oral contract to carry the baggage from the point of delivery to the place of destination, but it did not in terms define the rights and liabilities of the parties thereto. For these, it is necessary to .resort to the law founded upon usage
Though the defendant’s business was more limited than that of a railroad company or other carrier over long distances, the same general- principle must be applicable to him. On the failure of the owner of baggage to call for it at its destination, his abandonment of it would have been equally as unreasonable and unjustifiable as that of any other carrier. He was bound to take such reasonable precaution for its safety as was practicable and not unduly burdensome. Though not engaged in the storage business and having no place especially provided for such business, common knowledge would suggest the practicability, without any great harship, of his custody of the comparitively' small articles entrusted to him, for a limited time. For aught that appears in the statement of facts, he could have deposited them in the baggage-róom of the rail- ' way station. It does not appear that he even made a request for such privilege. He could' have taken them to his office, garage or place of business and stored them over night. In his business, such situations are likely not of frequent occurrence, wherefore the discharge of the duty here declared would ' not require maintenance of a station or building especially ' designed for storage.
A warehouseman is a bailee for compensation or hire, bound to exercise ordinary care for the safety of the property entrusted to him, Heatherington v. Richter, 31 W. Va. 858, not ’ a mere gratuitous one, liable only for loss or injury by wilful
The judgment is clearly right and will be affirmed.
Affirmed.