81 Kan. 143 | Kan. | 1909
The opinion of the court was delivered by
The appellants, who were doing business under the partnership name of the City Transfer Company, received the household goods of George W. Wiley, the appellee, for storage, and shortly afterward the goods, as well as the building in which they were stored, were destroyed by a fire which originated in- a livery stable adjoining the warehouse. In his petition the appellee alleged that he made a verbal agreement with the appellants to place and keep his goods on the ground floor of a brick building, and that the appellants failed to put the goods in their brick building, but instead had stored them in an adjoining wooden structure, covered with corrugated iron, which was consumed by.fire. It was averred that the brick warehouse of the appellants was not burned, and that if the goods, which were of the value of $435, had been stored there in accordance with the, verbal agreement there would have been no loss. In a second count of the petition there was an averment of the delivery of the goods to 'the appellants, as warehousemen; and that without the knowledge of the appellee they placed them in a wooden building, sheeted with iron, that was within one and a half feet from a livery barn, a dilapidated wooden ; structure containing great quantities of hay and other inflammable material and generally recognized as a fire trap, and that a fire originated in this barn which was communicated to the adjoining warehouse and destroyed the goods of the appellee; and, further, that the failure of the appellants to provide an adequate building and proper facilities for the safe-keeping of the .-goods turned over to them was a violation of their duty
The court denied a motion of the appellants asking that the appellee be required to elect upon which ground of his petition he would seek a recovery, and of this ruling complaint is made. There was no occasion to make an election. But one cause of action was pleaded and only one recovery was sought. That was for the loss of the appellee’s goods through a failure of the appellants to take proper care of them. The first count pleaded a liability of the appellants because of a breach of an express agreement as to the conditions of storage, and the second was upon the implied undertaking of a warehouseman for compensation to exercise reasonable care in providing an adequate and safe place for the goods placed in his keeping. Both counts are based on the same transaction and between them there is no such inconsistency as will prevent the uniting of them in the same action. A pleader is permitted to set up his cause of action in different forms in order to meet the exigencies of the proof. The failure of the appellee to prove a breach of the express agreement is no reason why he should not establish the breach of the implied undertaking. (Edwards v. Hartshorn, 72 Kan. 19; Berry v. Craig, 76 Kan. 345.)
Whether the verdict of the jury was founded on the first or second count of the petition is not disclosed by the record. There was a general finding in favor of the appellee, and it appears that the appellants did not ask for special findings or take any steps to learn the
(See, also, Hudson v. Columbian Transfer Co., 137 Mich. 255; Lilley v. Doubleday, L. R. 7 Q. B. D. 510; St. Losky v. Davidson, 6 Cal. 643; Hatchett & Bro. v. Gibson, 13 Ala. 587; Butler v. Greene, 49 Neb. 280; 30 A. & E. Encycl. of L. 53.)
Complaint is made of the admission of testimony showing the character and situation of the livery stable adjoining the building in which the goods were stored
A like question arose in Judd v. New York & T. S. S. Co., 117 Fed. 206, where property stored in a warehouse was burned by a fire which originated in an adjoining building owned by another. It was contended that if proper precautions, were taken against fire in the warehouse itself no responsibility could arise by reason of a fire starting on and communicated from adjoining premises, not owned or occupied or controlled by the warehouseman, since the fire was so violent in character as to defy any resistance that could possibly be opposed to it. The court ruled against this contention, holding that “the fact that a carrier which placed goods received for shipment in its warehouse took adequate precaution against fire on its own premises does not exonerate it from liability, as a matter of law, for the destruction of the goods from a fire originating on adr joining premises, . . . although such fire was so violent that it was impossible to prevent it from spreading to its own building, where it had full knowledge of the manifest danger to its own premises arising from the specially hazardous condition of those adjoining, and took no means to guard against it. Under such circumstances it may have been culpable negligence and a breach of duty as a bailee for hire to place the goods in such warehouse.” (Syllabus.) In Prince & Co. v. Compress Co., 112 Mo. App. 49, a warehouseman stored goods in a building close to a river, and it was held that he was bound to the exercise of care in order
The circumstances brought out in the testimony, including some not stated, were sufficient to warrant the court in submitting to the jury the question whether the appellants exercised such care toward the goods as the law requires of warehousemen.
No substantial error is found in the proceedings, and therefore the judgment is affirmed.