The plaintiffs sued the defendant for loss of property, stored with it as a warehouseman, alleging that the loss was occasioned by a fire caused through the defendant's fault, to their damage in the sum of $9,500. The stored property belonged to the Hachens. The plaintiff Boston Insurance Company had insured them against loss of the property by fire to the extent of $5,000, and had paid them that amount, and, thereby, according to the terms of the policy, had become subrogated to their right, if any, against the defendant to the extent of $5,000. The question presented at the trial therefore was whether the defendant was bound under the circumstances to reimburse the plaintiffs David S. Hachen and Pearl B. Hachen for the loss of the property. The issues were submitted to a jury to determine whether the loss occurred through the fault of the defendant and the extent of the loss. It returned a verdict for $2,800. The court entered judgment for the Boston Insurance Company for the amount of the verdict. That is the judgment from which this appeal was taken.
With characteristic frankness, appellant's counsel makes this statement in his brief:
"There are only two assignments of error that we claim are prejudicial to the rights of the appellant, to wit:
"First — The court erred in refusing to give defendant's special charge No. 1. *Page 226
"Second — The court erred in instructing the jury in the general charge, to disregard one of the defenses asserted by the defendant; and then still further limited the issue by stating that as both the refusal to give the special charge and the alleged objectionable part of the general charge relating to the defense of limitation of liability to $1,020 they really raise one issue and should be considered together."
The occasion for the storage of these household goods resulted from the fact that the plaintiff David S. Hachen, who had just been ordained a Rabbi, was expecting to receive notice at any moment that he had been appointed a Chaplain in the Navy, with the rank of Lieutenant, J. G., and at some uncertain time he would be assigned to any one of several naval bases. This would make it necessary, or at least desirable, to change his residence from Cincinnati to some place nearer the base to which he would be assigned. Rabbi Hachen knew that the United States was accustomed to reimbursing naval officers, who were married and desired to establish their home near their assigned bases, for a part or all of the expense of packing and transporting their household goods. It does not appear that the Navy was in any way bound to do so. Hachen was desirous of having the United States bear all the expense, including any storage charge that might be incurred, but was under the impression that it was not the practice to reimburse the storage charge. For personal reasons, the Rabbi wanted to surrender his Cincinnati residence at once. Accordingly, he consulted the defendant, and had this conversation with Mr. Kuhn, an officer of the defendant:
"I gather it probably took place about a week or so before June 11th. I asked Mr. Kuhn if it was possible to place the things in storage. He, of course, said it was and the question at issue for me was whether I could have the Navy pay for this. I asked Mr. Kuhn could the Navy pay for these things and Mr. Kuhn was very uncertain about this, then I believe we had a subsequent conversation a day or two later, in which he said, `place the things in the warehouse,' and that he would attempt to work out some arrangement with the Navy. That is as much as I can remember."
In accordance with Mr. Kuhn's suggestion the defendant *Page 227 attended to packing and hauling the household effects from the Rabbi's residence to the defendant's warehouse, where they remained in storage until they were almost completely destroyed by a fire, which was caused through the fault of the defendant, as found by the verdict of the jury.
The Rabbi continued his efforts to get the United States to bear all the expense incident to his moving his household effects, and he finally succeeded in getting an agreement to bear the expense of packing and transporting his goods, but at no time, so far as he knew, did the United States agree to pay any storage charge, although it did so finally as a result of his efforts.
While these negotiations were in progress, the defendant was carrying on negotiations on the same subject with the United States, but without keeping the Rabbi informed thereof.
It seems that the Navy Department, in order to facilitate its practice of taking care of the handling of household effects of Naval personnel, had adopted the plan of placing on file with warehousemen a form of government contract to govern their relations from year to year, should occasion arise, and that one such contract was on file with the defendant. It was a rather lengthy document and one of the provisions therein was the following: "In addition the contractor shall be responsible to the owner of any goods which it handled pursuant to this contract for any and all loss or damage to such goods resulting from the contractor's improper performance under this contract up to a maximum amount of $30 per hundred pounds thereof."
Notwithstanding that the evidence shows, without contradiction, that the Rabbi never saw this document and knew nothing of its existence, it is contended that his right of recovery is limited by it.
This conclusion is reached on the premise that the Rabbi delegated unlimited authority to the defendant to negotiate a contract between him and the Navy Department with reference to these household goods, or to enter into a new contract between it and the Navy Department in substitution for the contract of storage that already existed between him and the Navy Department. This is all predicated upon the conversation between *Page 228 the Rabbi and Kuhn, hereinbefore quoted. But at that time, both Rabbi Hachen and Kuhn were inclined to think that it was not possible to get the Navy to pay the storage charge, so that when the goods were placed in storage, the owners were the bailors and became bound to pay the storage charge based on their reasonable value. There is no evidence that they were ever relieved from that obligation.
The Rabbi at all times recognized that he was bound to pay the storage charge. His only hope was to get the Navy Department to reimburse him. And he was bound to pay a storage charge based on the reasonable value of the goods, and in the event of loss was entitled to recover, if at all, the reasonable value of the goods.
It seems to us that the parties acted at cross-purposes. The defendant seems to have made its storage charge against the Navy Department on the basis of a valuation of $30 per 100 pounds, without considering the effect of that limitation upon the right of the plaintiff to recover in event of loss through defendant's fault. As the plaintiffs were not parties to that agreement, the only effect was to limit the storage charge against the Navy.
Certainly, there is one fact clearly presented by the record, and that is that when this bailment came into existence the Rabbi and his wife were the bailors and the defendant was the bailee, and there was no limitation on its liability as a warehouseman. At that time, it was not even known with any certainty whether the Navy would pay any of the charges. We find nothing in the record that leads us to conclude that this unlimited liability was thereafter changed to a limited liability.
We, therefore, conclude that the trial court did not err in refusing to give the special charge, nor did it err in its general charge in withdrawing the defense of the limitation of liability from the jury.
For these reasons, the judgment is affirmed.
Judgment affirmed.
HILDEBRANT, P. J., and MATTHEWS, J., concur. *Page 229