Appellant assigns as error for the reversal of the judgment, the action of the court in giving and in refusing to give instructions, and in failing to sustain a demurrer to the complaint.
The allegations of the complaint are as follows: That on or about May........., 1909, Miss Christine Shaffer, a sister of the plaintiff, placed a box of household goods in storage with the defendant, a corporation under the laws of this State, and a year later plaintiff herself placed two boxes of household goods in storage with defendant, and thereafter Miss Shaffer paid the storage charges annually in advance on all of said boxes until her death in April, 1917. That Miss Shaffer at her death bequeathed her box to plaintiff by will, and immediately thereafter plaintiff went, to the office of the defendant company and tendered the charges then due, but the tender was.refused by the president of the defendant company, who informed plaintiff that the books of the company did not show that the boxes were then in the company’s custody. Plaintiff insisted that the goods were in the company’s warehouse, and offered to pay the charges of having the warehouse searched, but defendant’s president refused to permit this to be done, and that thereafter, during the year 1919, the company sold the three boxes at public auction at the courthouse in the city of Hot Springs; and that defendant refused, upon request being made, to recovér the goods or to pay their value as damages. The value was alleged and judgment therefor prayed.
The complaint does not specifically charge that the defendant company was a warehouseman and engaged in that business; but such is the effect of the allegations recited above, and the demurrer was therefore properly overruled.
Plaintiff offered testimony substantially supporting the allegations of her complaint, and the jury found in her favor upon conflicting testimony.
An instruction was given to the effect that, if plaintiff and her sister placed the goods in storage with the defendant, and paid the charges thereon in full,, and at the time of the demand for them offered to pay any charges then due, and offered to pay to have the company’s storage-room searched for her.goods, but that the offer was declined, and that later the goods were sold at public auction by the company, plaintiff would be entitled to recover their value. This instruction was even more favorable to the company than it had the right to ask, as no duty rested on plaintiff to pay for having the company’s warehouse searched.
The court gave an instruction to the effect that if plaintiff, after the death of her sister, requested the delivery of her goods, and the company was unable to find them after a diligent search, and afterward the goods were sold and, through no negligence of the company, plaintiff was not notified, and that the company had used reasonable care (such care as an ordinarily prudent person would use) to ascertain the owners of the goods to notify them of the intended sale, the companv would not h" liable. An exception was saved bv the defendant to fhis instruction. But we think no error was committed 'n giving it.
The court also charged the jury that, if the goods were sold without authority, plaintiff had the right to treat the sale as a conversion by the company and to sue the company for their value without being required to bring replevin against the purchaser at the sale had by the company. No error was committed in giving this instruction, as it correctly declared the law.
The court refused to give the only instruction asked by the company. It reads as follows: “The court instructs the jury that one who undertakes, without reward, to take care of the chattels or properties of another is required to use in its performance such care as men of common prudence, however inattentive, ordinarily take of their own affairs, and he will be liable only for bad faith or gross negligence which is an omission of such a degree of care.”
A sufficient reason for refusing this instruction was that there was no testimony that the company received goods for storage “without reward” or had received the goods in question for storage “without reward.” Upon the contrary, the company’s business was that of a warehouseman, and according to plaintiff the charges for storage were paid annually and in advance until the time when the company denied having the goods in their possession.
No error appearing, the judgment is affirmed.