APPEAL from a judgment of the Superior Court of the County of Gila. C. C. Faires, Judge. Judgment affirmed.
Mr. W. L. Barnum, for Appellant.
Mr. A. R. Edwards, for Appellee.
[40 Ariz. 19] LOCKWOOD, J.
Felix Jiminez, hereinafter called plaintiff, brought suit against Alabam's Freight Company, a corporation, hereinafter called defendant, to recover the value of certain goods which he claimed he had stored with defendant. The case was tried to a jury, which returned a verdict in favor of plaintiff in the sum of $450, and from the order overruling the usual motion for new trial and the judgment renderered on the verdict, this appeal is taken.
The complaint, after stating the capacity of the parties, set up that plaintiff was the owner of certain personal property which he delivered about the first day of February, 1929, to defendant, to be safely kept by the latter and delivered to plaintiff in good condition [40 Ariz. 20] upon demand. It then alleged a demand for delivery and a refusal, together with the value of the property so detained, and prayed for judgment in the amount of such value.
Defendant filed a general demurrer and general denial, and thereafter an amended answer, admitting the receipt of the property of plaintiff for storage, but alleging that it was destroyed by fire before demand for delivery was made, due to causes unknown to defendant, and for that reason the latter was unable to deliver it. Plaintiff replied, admitting the destruction of the property by fire, but alleging that such destruction was caused by certain acts of negligence on the part of defendant, naming them. Defendant denied, and then filed a second amended answer, denying any negligence and alleging that it had used all reasonable care for the protection of the property, and that the loss was occasioned by some cause beyond its control. The case went to trial upon the issues raised in the pleadings aforesaid.
There are two provisions of the Uniform Warehouse Receipts Act the construction
of which will in our opinion determine the result of this appeal. These provisions we quote in part as follows:
"A warehouseman, in the absence of some lawful excuse provided by this chapter, is bound to deliver the goods upon a demand made either by the holder of a receipt for the goods or by the depositor. . . . If the warehouseman refuses or fails to deliver the goods in compliance with a demand by the holder or depositor so accompanied, the burden shall be upon the warehouseman to establish the existence of a lawful excuse for such refusal." Section 3231, Rev. Code 1928.
"A warehouseman shall be liable for any loss or injury to the goods caused by his failure to exercise such care in regard to them as a reasonably careful owner of similar goods would exercise, but he shall [40 Ariz. 21] not be liable, in the absence of an agreement to the contrary, for any loss or injury to the goods which could not have been avoided by the exercise of such care." Section 3244, Rev. Code 1928.
Obviously, construing these two sections together, the warehouseman must deliver the goods as received unless they have been injured by something which could not have been avoided by his exercise of the care which a reasonably careful owner of similar goods would exercise regarding his own. This rule is conceded to be correct by both plaintiff and defendant.
The question next arises, and this is the vital issue in the case, as to where the burden lies in regard to proving whether or not the care so required has in fact been exercised. It is generally agreed by the courts that where the bailor of goods waives his action in contract and sues in tort he must sustain the burden of proof throughout and, if he alleges negligence, must prove it. On the other hand, if he sues in contract, as in this case, alleging the delivery of goods and a demand for their return, and the defense is that the goods are lost or destroyed, there is a conflict of authority. Many of the courts ...