In Schwerin v. McKie (51 N.Y. 180) there was a request to charge as follows: "That if the storehouse in question was secured in all respects, and watched as well as stores of this description usually are, notwithstanding the goods were stolen from the store by persons other than the defendants or their agents or servants, the defendants are not liable."Summary of this case from Hodell v. Tower's Stores, Incorporated
Argued May 14, 1872
Decided September term, 1872
John C. Dimmick, for the appellants.
Albert Mathews, for the respondents.
Nearly all the questions presented in their varied forms upon the motion for a nonsuit and for refusing to comply with the defendants' request for instructions to the jury, as well as upon the exceptions taken, depend for solution upon the question whether by the act of congress passed March 28, 1854, vol. 10, U.S. Statutes at Large, 270, 271, abolishing the warehousing system by establishing private bonded warehouses, the plaintiffs' property, which was placed in the warehouse kept by the defendants, and which remained there after the lien thereon for government duties had been discharged, was then subject to the exclusive risk of the plaintiffs; or, in other words, whether the defendants, who were entitled to receive from the plaintiffs a compensation for their services as warehousemen, were, by that act, released from the exercise of that ordinary care which men of common prudence would have exercised under the same circumstances in taking care of their own property. The establishment of such warehouses was an experiment, on the part of the government, for the benefit of those whose convenience or interest might be promoted by permitting their goods to remain in bond after the duties due to the government were paid; beyond the duties due to the government, it had no interest in the preservation of the property; all else belonged to the importer or owner, and the warehousemen who had a lien upon them for storage. The government were interested to see to it that in this new arrangement some security should be provided against its loss, which might accrue on account of any imports deposited in any warehouse authorized by that act, and hence it was provided that goods thus deposited should be at the exclusive risk of the owner or importer. In the prosperity of the warehouse keepers, who, like any other warehousemen, should undertake the enterprise for individual or private gain, the government had no special interest; and should not be understood to intend to relieve that class of persons from the perils of their enterprise by denying to those bound to pay them for their care the right to its exercise. The government was, in this arrangement, making a bargain, in its own behalf; it had no interest to interfere with or make any change in the obligations of bonded warehousemen to their patrons from the well-understood obligation of any other warehousemen to their patrons, and the presumption is that it did not, and that the risk provided for was for the exclusive benefit of the government.
When the plaintiffs gave evidence tending to show that the fifty-two boxes of cigars, deposited by them with the defendants, and upon which the duties had been paid, had not been delivered to them, and proved that they had demanded them of the defendants, who did not deliver them, it was quite unnecessary that they should have proved more. The failure of defendants to produce the cigars when demanded cast the onus of accounting for them upon the defendants. This was, in substance, the ruling in the court below. It has been referred to, approved and the principle established in Burnell v. The N.Y.C.R.R. Co. ( 45 N Y, 184, 189). The numerous requests for instruction to the jury, although a compliance with them was declined at the moment they were made, were afterward fully covered by the instructions, and complied with so far as a compliance was proper. Whether the storehouse in question was, in all respects, secured and watched as well as stores of the same description usually were, or whether they were as strongly secured in the respects mentioned as similar warehouses in Brooklyn, Jersey City and Hoboken, did not establish the fact that goods in them were housed and protected as a man of ordinary prudence would, under the circumstances, have protected his own property. If the warehouse was as perfect and as well guarded as the dictates of common prudence would, under the circumstances, have suggested, and the defendants' goods were, notwithstanding, abstracted therefrom by burglars, it was entirely proper that the judge should, as he in substance did, instruct the jury that the evidence must be such that from it they could fairly assume that the goods were lost by that means.
The request to charge that the degree of care required to be exercised by a railroad company in providing the best known inventions to prevent accidents to passengers was greater than was required by the defendants in providing fastenings and inventions to prevent burglars from entering the store, was well disposed of by instructing the jury that if the defendants exercised ordinary care, and the loss occurred without their negligence, their verdict should be for the defendants.
The cigars in question were the property of the plaintiffs, and when they demanded them they were entitled to one of three things: To the goods; the pay for them, or a valid excuse for not delivering them. The defendants have failed to do either; and, having thus occasioned the plaintiffs the loss of interest upon the value of their property without a valid excuse, they cannot justly complain of being charged with interest.
The judgment should be affirmed.
I am satisfied, notwithstanding the laws of the United States in reference to bonded warehouses, that the defendants are to be held to the liabilities and responsibilities of ordinary warehousemen, and yet I cannot concur with my brethren in the affirmance of the judgment below.
As warehousemen the defendants were charged with the duty of keeping the property intrusted to them with ordinary care. I think the undisputed evidence shows that they did this.
I think the court erred in refusing to charge the sixth request, as follows: "If the goods were stolen by burglars breaking into the store at night, through the scuttle, after it was closed for the night, the defendants are not responsible." This request was based upon the evidence, and there was nothing in the case calling for its qualification; and it cannot well be claimed that it was, substantially, contained in the charge as made. The evidence showed that the store was properly constructed, and there was no want of ordinary care and prudence in its management. It seems to me that the defendants took extraordinary care to secure the safety of the goods intrusted to them Hence the unqualified charge should have been given as requested.
The court also erred in refusing to charge the eleventh request, as follows: "If the goods were stolen by burglars entering through the scuttle at night, ordinary care on the part of these defendants did not require that they should ascertain, before the burglary, the best known methods of securing the scuttle against burglars, and securing it in that way." There is nothing in the charge as made covering this request.
Upon these grounds, without stating my reasons in full, I am for reversal of the judgment and a new trial.
All concur for affirmance, except EARL, C., dissenting.