Judgment reversed with direction to enter judgment for defendant Railway Express Agency.
Evans, Hull, Kitchell & Jenckes, Joseph S. Jenckes, Jr., of Phoenix, for appellant.
W. Dean Nutting, of Holbrook, and Jacob S. Alpert, of Phoenix, for appellee.
Udall, Justice. La Prade, C. J., and Stanford, Phelps and De Concini, JJ., concur.
[70 Ariz. 88] J. Schoen, as plaintiff (appellee), brought suit against the A. T. & S. F. Railway Company and the Railway Express Agency to recover damages in the sum of $ 2,009 alleged to have been suffered by him in connection with a shipment of some twenty cartons of merchandise (principally costume jewelry) weighing approximately 1200 pounds. The amended complaint alleged that the shipment arrived at Holbrook, Arizona, "in such a damaged condition as to be wholly valueless, and many items of said shipment were missing" and that this was caused "as a result of the careless and negligent handling of the defendants." The case was tried to the court sitting without a jury. The trial court held the plaintiff had not established his claim as to the articles alleged to be missing but had established the damaged condition of the shipment. Judgment was thereupon entered for the plaintiff against (1) the Santa Fe for the sum of $ 120.40 (which award was based upon the declared value of the shipment -- Gulf, Colorado & [70 Ariz. 89] Santa Fe Railway Co. v. McCandless, Texas, Tex.Civ.App., 190 S.W.2d 185); and (2) against the Railway Express Agency for the sum of $ 1,028.88. This appeal is by the latter defendant only.
While there are some three assignments of error, in the view we take of it, it is only necessary to consider the vital question as to whether the evidence is sufficient to establish negligence on the part of the Railway Express Agency as a warehouseman, for if that proof is lacking the judgment against the latter cannot stand. The matter of damages to the shipment caused by the Santa Fe while in transit or the sufficiency of the evidence to sustain the damages actually awarded by the trial court against Railway Express Agency are not now an issue, and hence need not be considered.
The evidence, stated in the light most favorable to a sustaining of the judgment, shows that about May 1, 1946, the plaintiff delivered to defendant (appellant) at Bergenfield, New Jersey, the shipment in question for transportation by it to Dallas, Texas. The goods were consigned to the shipper in care of defendant with instructions to hold the same at Dallas until called for. The goods arrived at that destination safely and were thereafter stored by defendant as a warehouseman in its "on hand department." The defendant's business in Dallas occupies "a tremendously big storage space" to wit: the entire basement under the large Union Terminal Building. The "on hand department" alone is approximately fifty feet in width and two hundred feet long. Stored in this department are all the goods received by defendant which are not to be delivered in Dallas. As this department was then stored to its approximate capacity with goods, two cartons, out of the twenty containing plaintiff's shipment, were placed on the floor as there was not sufficient storage space in the bins provided for that purpose.
The record further shows that during the night of May 28-29, 1946, there occurred a tremendous and unprecedented storm in Dallas. There were 6.22 inches of rainfall during a 24-hour period and 4.27 inches of this fell within a 2-hour period. This was the heaviest rainfall experienced in Dallas since the establishment of the weather bureau there in 1913. By reason of the downpour, water seeped into the basement through the doors and windows. The wind reached a velocity of 47 miles per hour and as a result of the storm the electric power for lighting and other purposes failed and was not restored until 8 a. m. the following morning. The basement used by defendant is so constructed that artificial lighting is required at all times. With the power failure defendant's employees were unable to carry on their duties.
The next morning the two cartons of plaintiff's shipment that were on the basement floor were thoroughly water-soaked. They were taken to another room, the contents [70 Ariz. 90] removed, dried, and repacked, and there is no claim this salvage operation was not promptly and skillfully done.
Early in September, 1946, in accordance with plaintiff's instructions, his stored goods were shipped via freight to him at Holbrook, Arizona. The shipment ...