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Orcutt v. Tucson Warehouse & Transfer Co.

Supreme Court of Arizona

November 26, 1957

Brent G. ORCUTT and Ethel B. Orcutt, his wife, Appellants,

Page 672

[83 Ariz. 202] May, Lesher & Dees, Tucson, for appellants.

Darnell, Holesapple, McFall & Spaid, Tucson, for appellee.


Appellants are the owners of a home near Tucson, Arizona. Sometime in the Spring of 1952, they closed their home for the summer and stored certain of their more valuable household goods and personal effects with appellee, the Tucson Warehouse & Transfer Company. In December, appellants arrived in Tucson from New York and immediately took part of their baggage to appellee's warehouse and requested that it, along with their other property in storage, be delivered to their home. Later there was a telephone conversation also directing the delivery. On the 8th day of December, 1952, appellants' property was placed on one of appellee's trucks, but while in transit caught fire and was almost totally destroyed. The cause of the fire is not explained.

Appellants brought suit, seeking to recover the value of the property destroyed which included miscellaneous clothing and other personal effects contained in suitcases, lockers and cases and household goods consisting of rugs, paintings, and antique

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furniture. The lower court found in favor of appellants, entering judgment for the full value of their personal effects in the sum of $3,492.50, further allowing recovery for items of household goods on the basis of 30 cents per pound for each article in the total amount of $735.90, and denied any recovery whatsoever as to certain other articles described by appellee as of 'extraordinary value.' This appeal questions the trial court's limitation of 30 cents per pound per article on the household goods, and the denial of any recovery as to the articles of extraordinary value.

Appellee's business is both that of a warehouseman and a common motor carrier for the transportation of property. However, the trial court concluded that the law of common carriers governs this case. We believe that this was correct. The law will look to the real transaction, and if the contract be, in fact, one for transportation, the undertaking will be considered as that of a common carrier. Kettenhofen v. Globe Transfer & Storage Co., 70 Wash. 645, 127 P. 295, 42 L.R.A.,N.S., 902, Ann.Cas.1914B, 776.

In the instant case, no signed contract of carriage was entered into by the parties, but in the absence of any statutory provision to the contrary, no particular form or solemnity of execution is required[83 Ariz. 203] to sustain a contract of a common carrier to transport goods. 9 Am.Jur. 658, Carriers, § 382. The contract of carriage consists of the Bill of Lading, Louisville & N. R. Co. v. Central Iron & Coal Co., 265 U.S. 59, 44 S.Ct. 441, 68 L.Ed. 900, and the Tariff as manifested by the words of the Tariff. Atlantic Coast Line R. Co. v. Atlantic Bridge Co., 5 Cir., 57 F.2d 654.

In this state a common carrier is an insurer for the safe transportation of goods entrusted to its care unless the loss is due to one of four specific causes, none of which admittedly apply to this case. Southern Pac. Co. v. Itule, 51 Ariz. 25, 74 P.2d 38, 40, 115 A.L.R. 1268; and in the absence of any stipulation to the contrary, the carrier is liable for the market value of the goods. McClure v. Johnson, 50 Ariz. 76, 69 P.2d 573. As said in Vacuum Oil Co. v. Rotterdamsche Lloyd, 2 Cir., 31 F.2d 974, 975:

'* * * This is just. Had the contract for transportation been carried out, the shipper would have had the value of his goods at that time and place, less the freight paid. His loss by the carrier's breach of contract is the difference between what his position would have been, had the contract been performed, and his situation as it is. * * *'

If there is a stipulation for the limitation of liability by the carrier, it must have also held itself out as being in readiness to transport freight without such limitation and if this is not done, the limitation of liability is void and not operative. Union Pacific R. Co. v. Burke, 255 U.S. 317, 41 S.Ct. 283, 65 L.Ed. 656.

Appellee is the holder of a certificate of convenience and necessity of transport as a common motor carrier of property. We are concerned only with the following two classifications established therein: (1) Freight and baggage in Tucson and vicinity; (2) Household Goods between all points and places in Arizona. Effective September 15, 1951, there was established for appellee Local Freight Tariff No. 2-D. It is a document of 42 pages in length applicable to six common motor carriers doing business in the vicinity of Tucson, including the appellee. The classifications established in appellee's certificate of convenience and necessity are not strictly followed in the Local Tariff No. 2-D. Rather, the freight tariffs are grouped in three general categories. By agreement, we are concerned only with category 3, entitled 'Commodity Rates.' The general category 'Commodity Rates' is divided into two classifications or sections. The first section contains Items 600 through 630 pertaining to Household Goods. 'Household Goods' is defined in both the certificate of convenience and necessity and in Item 600 as:

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'The term 'Household Goods' means the personal Effects and Property used, [83 Ariz. 204] or to be used, in a dwelling when a part of the equipment or supply of such dwelling; Furniture, Fixtures, Equipment and the Property of stores, offices, museums, institutions, hospitals, or other establishments when a part of the stock, equipment, or supply of such stores, offices, museums, institutions, hospitals or other establishments; and Articles, including Objects of Art, Displays, and Exhibits, which because of their unusual nature or value require specialized handling and equipment usually employed in moving household goods.'

The basis of the charges under Items 600 through 630 is cents per hundred pounds according to the number of miles carried. This section of the Tariff is plainly established to conform to classification 2 ...

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