88 Minn. 352 | Minn. | 1903
The plaintiff in this action had a verdict in the court below for the full amount claimed in his complaint, and the appeal is from
The case is simple, and the points made on appeal need very little discussion. The complaint sets up a cause of action for damages arising out of defendant’s neglect to keep its cold-storage plant, in which plaintiff had stored celery, at an even and uniform temperature, at from 34 to 38 degrees above zero, Fahrenheit, as it was alleged it had agreed to do, whereby the celery had been wholly spoiled and made worthless. It was also averred that it was necessary, in order to keep celery in storage, that the temperature be held evenly, and,not below freezing, and not materially above 38 degrees Fahrenheit, which fact it was alleged was well known by the defendant during all of the time the celery was in its possession.
The plaintiff failed to prove an express agreement to keep the celery at the temperature first above specified, and was obliged to abandon that allegation. When he attempted to show the proper temperature for celery in cold storage, the court below made a ruling which caused his counsel to offer to amend his complaint by striking out the allegation as to an. express agreement in respect to the temperature. To this, counsel for the defendant objected, and moved to dismiss the cause upon the ground that the action was “for breach of contract,” and that it could not be maintained because this express contract had not been established by the proofs. The motion was denied, and the parties then proceeded with the case.
There was no error in the denial of this motion. Independently of the allegation in the complaint, which was the basis of the motion, a cause of action was alleged arising out of a contract but sounding in tort. No amendment was necessary to the complaint in order for plaintiff to recover. Failing to prove the express contract, the plaintiff could rely upon an implied contract properly to care for the article stored.
This implied contract arose from the fact that the defendant as a warehouseman received the celery for storage. His counsel complains of a ruling of the court whereby a newspaper advertise
After the celery had been in defendant’s possession a few weeks, and before it was appreciably injured, plaintiff visited the room in which it was stored, and discovered that the temperature was about 50 degrees above, — altogether too high for celery. It is contended by defendant’s counsel that the plaintiff cannot recover because he was “guilty of contributory negligence” at that time; that by failing to remove his goods he assumed the risk of loss, must be presumed to have assented that the goods should be kept in such temperature, and cannot recover damages. The general rule upon which counsel relies, that a bailor, upon learning that .a bailee has exposed his property to injury, must use ordinary prudence to protect himself from additional injury, is well known, and is applicable in ordinary cases of bailment. Whether it is strictly applicable here we need not decide, for it fairly appears
We need not discuss the case further, and the order appealed from is affirmed.