Anderson v. Murdoch Storage & Transfer Co.

*218Dissenting Opinion by

Mb. Justice Musmanno :

Lieutenant Clarence F. Anderson, United States Army chaplain, stored, on February 29, 1944, $5,000 worth of personal goods with the defendant Murdoch Storage & Transfer Company, owners of warehouses. Mrs. Anderson, the plaintiff’s wife, testified that when she asked Mr. Murdoch, one of the defendants, if he could make storage space available, he replied: “Yes, I can. Mrs. Anderson, we favor officers and their families. I will have your goods put in a fireproof building, in a room by itself, where it will be taken care of and you will not have a thing to worry about.”

On October 29, 1944, the goods, and the building in which they were stored, were completely destroyed by fire. Since the defendants now denied any responsibility for the loss, the plaintiff brought suit, claiming that the defendants had made misrepresentations and that they had also committed certain acts of negligence in connection with the manner in which they stored the plaintiff’s property.

The lower court entered a compulsory nonsuit against the plaintiff, quoting the “Warehouse Receipt and Contract” mailed to the plaintiff on March 4, 1944, and which carried the provision: “Goods are stored at owner’s risk of loss or damage by moth, rust, fire or theft occurring at or after fire, deterioration by time, and ordinary wear and tear in handling.”

At the trial the learned Trial Judge struck from the record all the testimony which led up to the warehouse receipt of March 4, 1944, relying on Gianni v. Russell & Co., 281 Pa. 320, 126 A. 791, for this ruling. But in Feuerstein v. New Century Realty Co., 304 Pa. 271, 156 A. 110, this Court distinguished the Gianni case and held: “It is always competent to aver and prove that an engagement in writing was induced by fraudulent oral representations of material facts that *219affect the consideration. The purpose in such case is not to alter or vary the terms of the writing by parol evidence but to strike the writing down, just as though it had never been in existence, or to strike down such part of it as is dependent on the fraud, if the balance of the contract can be sustained as enforceable.”

Receipts for goods generally do not profess to contain the entire agreement between the parties involved. They are what the word indicates, simply acknowledgments of the delivery and acceptance of certain commodities: “A warehouse receipt may recite so little of the agreement between the parties that it does not rise to the dignity of a contract and in such a case evidence may be received of the terms of the contract, and where a warehouse receipt specifies no particular place for the storage of goods, evidence is admissible to show a prior parol agreement which does so specify.” (27 R.C.L. Warehouses, See. 19, p. 964.)

If the defendants here had placed the plaintiff’s goods in a fireproof building as they represented they would do, it would not have mattered that the contract read that the plaintiff’s goods were stored at “owner’s risk of loss or damage by moth, rust, fire or theft,” because a loss by fire would not have occurred.

Did the defendants make a misrepresentation in order to induce the plaintiff to enter into the contract of March 4, 1944? That was a question of fact for the jury.

But there is another and decisive reason why this case should have been submitted to the jury. It is true that the warehouse receipt declared that the owner stored his goods at his own risk of loss by fire, but this concession was based on the inescapable responsibility and duty of the warehouseman to exercise due care to save the goods from loss by fire. “Warehousemen frequently insert clauses in their receipts which limit *220their liability in ease of injury or destruction of the stored goods. Where such provisions seek to relieve the warehouseman from the consequences of his own negligence, they have, in many cases, been regarded as invalid . . .” (56 Am. Jur., Warehouses, Sec. 216, p. 419.)

Did the defendants exercise due care in the protection of the plaintiff’s property? Regardless of the language employed by the bailee, he may not avoid indemnifying the bailor for losses occasioned by his own negligence, because it would be contrary to public policy for anyone to enter into an agreement for immunization against culpable conduct.

In the case of Schell v. Miller N. Broad Storage Company, 157 Pa. Superior Ct. 101 (approved by the Supreme Court in 353 Pa. 319), the plaintiffs stored goods in a warehouse under a bailment contract which provided: “The bailee shall be responsible for exercise of ordinary diligence and care in . . . storage . . . but not liable for loss or damage occasioned by . . . fire . . .” The goods were destroyed by fire and the plaintiff sued the storage company which defended on their contract. The lower court nonsuited the plaintiff, but the Superior Court reversed on the ground that the bailee, although not an insurer, “was obliged to exercise ordinary diligence and care not only to prevent a fire from starting but also to arrest its progress.” The Superior Court in its decision made an examination of the evidence introduced in behalf of the plaintiff and concluded that it was adequate to establish a prima facie case of negligence on the part of the defendant, which required submission of the issue involved to a jury.

I believe that the same situation obtains in the case at bar. Accepting every fact and inference therefrom in the light most favorable to the plaintiff, as we are *221required to do in considering a nonsuit, the evidence clearly indicates that the defendants failed to measure up to the care required by them by law. The building in which the goods were stored, having been used as a hay and feed store for 34 years, was a dried-out structure, with wooden floors and ceiling and therefore vulnerable to the tiniest flame. The elevator in the building was blocked off from the rest of the building only by wooden partitions. Open electric wires were attached to wooden joists by porcelain conductors. A coal furnace, in which the defendants and tenants threw waste paper and rubbish, dominated the basement. The whole building was equipped with 10 fire extinguishers, 2 to a floor, but no one was charged with the responsibility or duty of operating these extinguishers. After 5 o’clock at night, the building was without watchman. The fire began at 6:30 p.m. Evidence established that on the day of the fire, a truck owned by the defendants, with gasoline in its tank, parked on the first floor in the rear of the building, and it was here that the fire began. The building was not equipped with automatic fire extinguishers, sprinklers or fire doors of any kind. Edward A. Murdoch, one of the defendants, testified as follows: “Q. There was nothing to

prevent the spreading of fire in that building once it started, was there? A. Not that I know of. I don’t get the drift of your question. Q. There was nothing automatic to block off the fire after it started? A. No.” That the defendants were aware of the proper manner in which to maintain a warehouse was evidenced by the fact that another warehouse owned by them (on Neville Street, Pittsburgh) was equipped with modern safeguards against fire hazards such as automatic doors and fireproof means to shut off the elevator shaft.

I do not believe that it can be said that with this evidence no two reasonable men could fail to agree on *222the absence of negligence in the manner in which the defendants maintained the warehouse in which the plaintiff’s goods were destroyed. In McCracken v. Curwensville Boro., 309 Pa. 98, 114, 163 A. 217, the Supreme Court declared: “ ‘It is an established principle that if there is any credible evidence from which a reasonable conclusion can be drawn in support of the claim of either party in the trial of a case, the question must be left to the jury. ... A verdict should not be directed if on all the facts and circumstances there is room for fair and sensible men to differ in their conclusions, or, as it is sometimes stated (if) the evidence is not such that honest minds could reach but one conclusion’: 26 R.C.L., pages 1067, 1069, Section 75.’. .”

Under this ruling the issue as to whether the plaintiff met the burden of proof of lack of care on the part of the defendants was a question of fact for the jury.

I would remove the nonsuit with a procedendo.