25 S.D. 96 | S.D. | 1910
This is an appeal from the circuit court of Day county from a judgment in favor of respondent and an order overruling appellant’s motion for a new trial.
At the time of this transaction one Thomas Delaney was agent of the defendant company at Webster, but was sick during the month of April, and 'the defendant company placed one C. EWorrall .of Aberdeen, S. D., in charge of its office at Webster from the 10th to the 30th of April, 1907. It appears from the record that about the 19th of April, the plaintiff, through her father, made some attempt by telephonic communication with the office to ascertain whether said package had arrived at Webster, but failed to receive such information. On the receipt of this package, the agent, Worrall, deposited it in. the building occupied by the defendant company as its place of business, in .the city of Webster, which consisted of two rooms. The front room was used as an office, and the back room for the storage of packages on hand. About half past 3 o’clock on the morning of April 25, 1907, it was discovered that this building was on fire. The fire department responded to a call, and by means of chemicals and water extinguished the 'fire in about 10 minutes. Shortly after the fire the package in question was found in the store-room, water soaked and practically destroyed as the result of the fire. There was a stove in the front office, but no stove or other means of heat in the storage room- connected therewith. It ap
On the trial of the cause the plaintiff offered evidence showing the delivery of the package to- the Great Northern Express Company, a demand for the same of the defendant company at Webster, and the failure of the defendant to deliver the same, and rested her case. The defendant thereupon offered the evidence as to the fire, hereinbefore summarized, without any further attempt to show the cause or origin of the fire. The defendant did not call a-s a witness Worrall who had charge of the office at the time of the fire, nor offer any explanation of his absence. At the close of all' the evidence, the defendant moved the court to direct the jury to return a verdict for the -defendant, on the ground that the evidence was not sufficient to warrant a verdict for the plaintiff. Thereupon the plaintiff also moved the court to direct a verdict in her behalf, on -the ground that the evidence was insufficient to show any defense to the plaintiff’s claim. The court sustained the plaintiff’s motion, and directed a verdict for plaintiff for $71.50. No question is raised as to the amount of the verdict so directed.
Appellant first contends that by reason of the notice to the consignee of the arrival of this package, it appearing that the consignee was not a resident of the city of Webster, its liability
The burden of proof being upon the defendant to show that the loss of this property by fire occurred without negligence on its part, the only question remaining is whether the evidence offered by the defendant is sufficient to establish such defense. The bur
Under the views thus expressed, the verdiot by direction of the court stands precisely as would a verdict returned by the jury upon the evidence, and, unless the verdict of a jury would be set aside by the court,' it must be held sufficient -to sustain a direction’ of a verdict by the trial court.
Finding no error in the record, the judgment and order of the trial court are affirmed.