40 Kan. 184 | Kan. | 1888
Opinion by
The plaintiff brought this action to recover the value of two boxes of household goods shipped by him from Rising Sun, Ohio, to Clyde, Kansas. The first question raised by the company is, that whatever its liability may be, it could only be liable as warehouseman, and not as common carrier; and as the court submitted to the jury both questions, it is assigned as error. In this view we are with the plaintiff in error, that whatever its liability is, it is as warehouseman, and not as common carrier. The goods, by the undisputed evidence and findings of the jury, had remained some nine or ten days at the depot before they were burned; and under the rule laid down in L. L. & G. Rld. Co. v. Maris, 16 Kas. 333, in which it was held that eight days was an unreasonable, time for goods to remain in a depot, the lapse of such a length of time would terminate its liability as carrier. Plaintiff claims in his petition that the goods were destroyed by reason of the negligence of the company. If this was true, then that would constitute a liability on the part of the company as warehouseman; but as there is no evidence tending to show the cause of the fire at the depot, no negligence can be presumed. The only other circumstance we find in the evidence to show negligence is the fact that the plaintiff, 'through his agent, demanded the goods of the company on the 27th of November. The goods were there, and had been there some eight days at that time, and if they had been delivered to the plaintiff, would not have been burned on the 29th. This we think was negligence such as would make the company liable as warehouseman. It was its fault that the goods
The second error alleged is, that the court refused to allow in evidence the receipt and contract under which the goods were shipped. The evidence shows that at the time the goods were shipped the rate of freight was agreed upon, the money paid, and a receipt was given for the goods which contained on its, back certain limitations exempting the company from liability as common carrier and certain other liabilities. This receipt was offered in evidence, and the court refused to permit it. In this we see no error. This contract was one made for the benefit of the company and connecting lines in the shipment of the goods, and related to the goods during such transit and while in their hands as common carriers. There is no question in this case but that the goods reached their destination. The receipt and contract was for their conveyance from Rising Sun, Ohio, to Clyde, Kansas, and limited the liability of the company as common carrier when the goods should reach the latter point. The receipt and contract, then, had spent its force when the goods reached Clyde. It becomes immaterial, then, what the contract was in relation to the shipment of these goods. They had been shipped; the freight had been paid; the goods had been received at Clyde; and the liability of the company as a common carrier had ceased. What object, then, would it serve, or what fact would it establish ? It certainly was immaterial, and was properly excluded.
We see no error in the instruction of the court, and there
By the Court: It is so ordered.