warehouseman, notwithstanding the fact that there is a government storekeeper also in charge: Schwerin v. McKie, 5 Rob. (N. Y.) 404; S. C., in court of appeals, 51 N. Y. 180; S. C., 10 Am. Rep. 581; Claflin v. Meyer, 43 N. Y. Sup. Ct. 1; S. C., in court of appeals, 75 N. Y. 260; S. C., 31 Am. Rep. 467; Macklin v. Frazier, 9 Bush, 3.

5. OTHER EXAMPLES.-A municipal corporation receiving gunpowder for storage outside the city limits, under a city ordinance, is liable therefor in the same way as a private warehouseman: Moore v. Mayor etc. of Mobile, 1 Stew. 284. A keeper of a floating warehouse, it seems, is bound to a greater degree of care and diligence, and liable for a slighter degree of negligence, with respect to the goods in his charge than an ordinary warehouseman, because his employment requires greater skill and ability: Hamilton v. Elstner, 24 La. An. 455. In that case, the keeper of such a warehouse was held liable for the loss of certain gunpowder stored on his boat, because he had been guilty of negligence in permitting the boat to be overloaded so that she sprang a leak and sank, and in not removing the powder before she sank. BEGINNING OF WAREHOUSEMAN'S LIABILITY.—A warehouseman's liability for goods intrusted to him, it is said in Thomas v. Day, 4 Esp. 262, begins at the moment his tackle is applied to them to lift them into his warehouse, and if through his negligence the tackle provided is insufficient, and breaks, and thereby occasions an injury to the goods, he must respond in damages. If he consents to take charge of the goods before they reach his warehouse, his liability dates from that moment. Thus, where a hogshead of sugar was deposited on the bank of the river near the defendant's warehouse, and at the request of the owner the defendant took charge of it, and while he was endeavoring to draw it up the bank on a slide the pins at the back of the slide broke, and the cask rolled into the river, it was held that if the accident happened through want of ordinary care on the defendant's part, he was liable therefor, but not otherwise: Ducker v. Barnett, 5 Mo. 97. Where the master of a canal boat had brought a cargo of salt consigned to the defendant to within a mile and a half of his warehouse, but could proceed no further on account of the ice, and at the master's request, the defendant paid the freight, and removed part of the salt to the warehouse, it was held that by reason of the consignment, the payment of the freight, and the receipt and removal of part of the salt, the defendant acquired such a special property and such possession of that remaining on the boat (the same having been left there by the captain until spring), that if nothing else appeared, he would be liable therefor as a warehouseman. But it appearing that the owner of the salt came while the balance of it was on board the boat, and finding it all right paid the defendant his charges with respect to the salt received, and his advances for freight, it was held that this terminated the defendant's lien and constructive possession, so that he was not liable for a loss subsequently occurring, the owner having a right to take immediate control and possession: Titsworth v. Winnegar, 51 Barb. 148. In Rodgers v. Stophel, 32 Pa. St. 111, it was decided that a wharfinger's liability begins "when the goods are delivered at, or rather on the wharf, and he has either expressly or by implication received them." In Blin v. Mayo, 10 Vt. 56, it was held that evidence was admissible to show a usage that when goods were landed on a wharf they were considered to be in the custody of the wharfinger.

TERMINATION OF LIABILITY.-Where wheat was delivered from a ware house to a vessel through an iron pipe or tube, being first weighed in the cupola of the warehouse, in the presence of the first mate of the vessel, and tallied,

and then emptied into the pipe, it was determined that the warehouseman's liability ended and the carrier's liability began at the moment that the wheat entered the pipe; and it appearing that by the careening of the vessel the pipe parted, so that a considerable quantity of the wheat was lost, it was held that the vessel was liable, and that it was immaterial at what point the pipe broke: The R. G. Winslow, 4 Biss. 13. Where the warehouseman is wrongfully divested of his possession, there seems to be some difference of opinion as to whether or not it is his duty to pursue and reclaim the property if possible. In Sessions v. Western R. R. Corp., 16 Gray, 132, it was decided that the liability in such cases was coextensive with the warehouseman's actual and continued possession, and that where he was deprived of his possession it was not his duty to pursue the property, his liability being fixed at the moment when his possession ceased, so that if his loss of possession was not occasioned by his own neglect, he was not responsible for any of the after consequences. It appears to have been the opinion of the court in Smith v. Frost, 51 Ga. 336, on the other hand, that where cotton was taken by the confederate authorities from the defendants' warehouse and thrown into the street, it would have been the duty of the defendants to reclaim it and care for it, if they could do so by the exercise of common diligence. They were adjudged not to be liable in that case, however, because they were under duress in the confederate service at the time, and because the owner of the cotton was himself present when it was thrown out of the warehouse, and might, by proper diligence, have saved it.

BURDEN OF PROOF AS TO NEGLIGENCE.-There has been much controversy with respect to the question as to whether, in an action by the owner of goods against the warehouseman, to whom he has intrusted them, for their loss or injury, the burden of proof is on the plaintiff to show negligence, or on the defendant to show due care: Story on Bail., sec. 454. The English cases seem to place the burden of proof on the plaintiff without qualification. Thus in Finucane v. Small, 1 Esp. 315, it was said by Lord Kenyon that the plaintiff must show "positive negligence." So in Cooper v. Barton, 3 Camp. 5, in notis, which was an action against the bailee of a horse for hire, for an injury to the animal, it was held that positive negligence must be shown, and that it was not enough to prove that such horse was returned with his knees broken, in order to throw the onus on the defendant. So in Harris v. Packwood, 3 Taunt. 264, an action against a carrier, it was determined that the defendant was not bound to prove due care. In Gilbert v. Dale, 5 Ad. & El. 543, the action was assumpsit againt the keeper of a general booking office, for the transmission of parcels by coach, for the non-delivery of a parcel. It appeared that the parcel was left with the defendant, and did not reach the consignee, nor was it otherwise accounted for. On this showing it was held that the plaintiff was properly nonsuited, and that he should have proved by direcs evidence that the parcel was taken from the booking office and lost, or that it was not delivered to any carrier.

The American cases are somewhat conflicting. In Cass v. Boston etc. R. R. Co., 14 Allen, 448, which was an action on a contract for the non-delivery of goods by a warehouseman on demand, it was held by a majority of the court, Bigelow, C. J., dissenting, that the defendant must show that the goods were lost without fault on his part, although Chapman, J., intimates that the rule might be different where the action is founded on negligence. A similar rule was laid down in Lichtenhein v. Boston etc. R. R. Co., 11 Cush. 70, where it was said, however, that the defendant need not show precisely how the loss occurred. So in Alden v. Pearson, 3 Gray, 342, an action against

a carrier, it was held that after proof of a delivery to him, and a demand and refusal, or neglect to redeliver, or such a loss as to render a demand useless, he must show that the loss occurred from a peril for which he was not liable. The New York cases on this point are numerous. Walworth, circuit judge, in charging the jury in the court below in Platt v. Hibbard, 7 Cow. 497, laid down the rule to be that where property intrusted to a warehouseman or wharfinger "is lost, injured, or destroyed, the weight of proof is with the bailee, to show a want of fault or negligence on his part." In a note to that case, however, the learned reporter questions this doctrine, and after referring to a number of English decisions, says: "The distinction would seem to be that when there is a total default to deliver the goods bailed, on demand, the onus of accounting for the default lies with the bailee; otherwise he shall be deemed to have converted the goods to his own use, and trover will lie: 2 Salk. 655; but when he has shown a loss, or where the goods are injured, the law will not intend negligence." This distinction seems to be adopted in the principal case. In Foote v. Storrs, 2 Barb. 326, Willard, J., refers with approval to the rule laid down in Schmidt v. Blood on this point. So in Bush v. Miller, 13 Barb. 481, C. L. Allen, J., referring to these cases, adopts the distinction, and holds that where there is a "total failure to account for the property delivered," the onus is on the warehouseman, or forwarding merchant. Indeed, the doctrine is well established in New York that where there is a failure or refusal by a warehouseman to deliver, on demand, goods which have been intrusted to him, it is prima facie evidence of negligence sufficient to cast upon him the burden of accounting for the nondelivery: Burnell v. New York etc. R. R. Co., 45 N. Y. 184; S. C., 6 Am. Rep. 61; Schwerin v. McKie, 5 Robt. 404; S. C., in the court of appeals, 51 N. Y. 180; S. C., 10 Am. Rep. 581; Coleman v. Livingston, 36 N. Y. Sup. Ct. (4 Jones & S.) 32; S. C., 45 How. Pr. 483; Fairfax v. New York etc. R. R. Co., 43 N. Y. Sup. Ct. (11 Jones & S.) 18; S. C., in court of appeals, 67 N. Y. 11; Goldin v. Romer, N. Y. Sup. Ct., May, 1880, 10 Rep. 783.

So in Arent v. Squire, 1 Daly, 347, which was an action for damages for the loss of sixty gallons of gin out of two pipes stored in the defendants' warehouse, it was decided that where it was proved that property intrusted to a warehouseman was not returned on demand, or was returned diminished in quantity, or injured, the onus was on the warehouseman to show due diligence. In that case, however, there was evidence that the casks had been recoopered while in the warehouse. But where the defendant in such an action proves that the goods have been destroyed by fire, or have been stolen, the burden is said to rest on the plaintiff to show want of ordinary care: Lamb v. Camden etc. R. R. Co., 46 N. Y. 271; S. C., 7 Am. Rep. 327; Claflin v. Meyer, 75 N. Y. 260; S. C., Am. Rep. 467; reversing Claflin v. Meyer, 43 N. Y. Sup. Ct. (11 Jones & S.) 1, and virtually overruling Madan v. Covert, 42 Id. 135. Hand, J., delivering the opinion of the court in Claflin v. Meyer, 75 N. Y. 260; S. C., 31 Am. Rep. 467, says: “The cases agree that where a bailee of goods, although liable to their owner for their loss only in case of negligence, fails, nevertheless, upon their being demanded, to deliver them, or account for such non-delivery, or, to use the language of Sutherland, J., in Schmidt v. Blood, where 'there is a total default in delivering or accounting for the goods,' 9 Wend. 268, this is to be treated as prima facie evidence of negligence: Fairfax v. N. Y. C. and H. R. R. Co., 67 N. Y. 11; Steers v. Liverpool Steamship Co., 57 Id. 1 [S. C., 15 Am. Rep. 453]; Burnell v. N. Y. C. R. R. Co., 45 Id. 184 [S. C., 6 Am. Rep. 61]. This rule proceeds either from the assumed necessity of the case, it being presumed that the bailee

has exclusive knowledge of the facts, and that he is able to give the reason for his non-delivery, if any exist, other than his own act or fault, or from a presumption that he actually retains the goods, and by his refusal converts them.

"But where the refusal to deliver is explained by the fact appearing that the goods have been lost, either destroyed by fire or stolen by thieves, and the bailee is therefore unable to deliver them, there is no prima facic evidence of his want of care, and the court will not assume, in the absence of proof on the point, that such fire or theft was the result of his negligence: Lamb v. Camden and Amboy R. R. Co., 46 N. Y. 271 [S. C., 7 Am. Rep. 327], and cases there cited; Schmidt v. Blood, 9 Wend. 268; Platt v. Hibbard, 7 Cow. 500, note. Grover, J., in 46 N. Y., supra, says, in delivering the opinion of the court, the question is, whether the defendant was bound to go further (i. e., than showing the loss by fire), and show that it and its employes were free from negligence in the origin and progress of the fire, or whether it was incumbent on the plaintiffs to maintain the action to prove that the fire causing the loss resulted from such negligence.' And he proceeds to show that the charge of the judge who tried the cause gave to the jury the former instruction, and that this was contrary to the law and erroneous. So Sutherland, J., in 9

6

Wend., supra, in the case of a warehouseman, says the onus of showing the negligence 'seems to be upon the plaintiff, unless there is a total default in delivery or accounting for the goods.' And he cites a note of Judge Cowen to his report of Platt v. Hibbard, 7 Cow. 500, in which that very learned author says, criticising and questioning a charge of the circuit judge, 'the distinction would seem to be that when there is a total default to deliver the goods bailed on demand, the onus of accounting for the default lies with the bailee; otherwise he shall be deemed to have converted the goods to his own use, and trover will lie: Anonymous, 2 Salk. 655; but when he has shown a loss, or where the goods are injured, the law will not intend negligence. The onus is there shifted upon the plaintiff.'

"It will be seen, as the result of these authorities, that the burden is ordinarily put upon the plaintiff alleging negligence, to prove it against a ware houseman, who accounts for his failure to deliver by showing a destruction or loss from fire or theft. It is not, of course, intended to hold that a ware houseman refusing to deliver goods can impose any necessity of proof upon the owner by merely alleging, as an excuse, that they have been stolen or burned. These facts must appear or be proved with reasonable certainty. Nor do we concur in the view that there is in these cases any real shifting of the burden of proof. The warehouseman, in the absence of bad faith, is only liable for negligence. The plaintiff must, in all cases suing him for the loss of goods, allege negligence and prove negligence. This burden is never shifted from him. If he proves the demand upon the warehouseman and his refusal to deliver, these facts unexplained are treated by the courts as prima facie evidence of negligence; but if, either in the course of his proof or that of the defendant, it appears that the goods have been lost by theft, the evidence must show that the loss arose from the negligence of the warehouseman.” In Clark v. Spence, 10 Watts, 335, which was an action on the case against warehousemen for the value of a trunk intrusted to them, several witnesses for the defendants testified to the loss of the trunk, but left it uncertain whether it had been stolen or delivered to a wrong person, though it clearly appeared to have come to the possession of a third person. Rogers, J., after referring to the rule laid down by Mr. Justice Walworth, in Platt v. Hibbard, 7 Cow. 501, as stated above, expressed himself as follows: "It is to be regretted that this is not the rule, but it seems to be contrary to the

current of authority, as has been clearly shown by the cases cited at the bar. The rule is that when a loss has been proved, or when goods are injured, the law will not intend negligence. The bailee is presumed to have acted according to his trust until the contrary is shown. But to throw the proof of negligence on the bailors, it is necessary to show, by clear and satisfactory proof, that the goods were lost, and the manner they were lost. All the bailor has to do, in the first instance, is to prove the contract and the delivery of the goods, and this throws the burden of proof that they were lost, and the manner they were lost, on the bailee, of which we have a right to require very plain proofs." The same learned judge laid down the rule applicable to this class of cases in very similar language in Beckman v. Shouse, 5 Rawle, 179. In accordance with this rule it was held in Logan v. Mathews, 6 Pa. St. 417, that where one who had hired a buggy returned it in a damaged condition, without giving any explanation of the injury, the burden was on him to show that it was not due to any want of care on his part.

The rule laid down in Jackson v. Sacramento etc. R. R. Co., 23 Cal. 269, is that in case of a loss of property intrusted to a warehouseman, the onus is on the bailor to show that it occurred through want of ordinary care and diligence. On the other hand it was held, in Thomas v. Darden, 22 La. An. 413, that in such a case the bailee must show that the loss occurred without any negligence on his part. But where it appears that the loss was occasioned by an overpowering force, such as fire, it is held in the same state that the burden is on the bailor to show negligence: McCullom v. Foley, 17 La. An. 89. So where the goods appeared to have been seized by the confederate government: Babcock v. Murphy, 20 Id. 399. In Boies v. Hartford etc. R. R. Co., 37 Conn. 272; S. C., 9 Am. Rep. 347, which was assumpsit for the non-delivery of cotton by the defendants as warehousemen, it was decided to be the duty of the defendants to account for the bales that were missing, and show that they were not lost through want of care. The court held that the very fact that they were missing was strong evidence of negligence under the circumstances; but declined to lay down a general rule applicable to a different state of facts. In Cox v. O'Riley, 4 Ind. 36S, where the defendant, a wharfinger, had failed to deliver certain goods to the consignee on demand, it was held that he must show that the property was not in his possession, being permitted to prove that he used reasonable and ordinary diligence in preserving it.

The doctrine deducible from these authorities seems to be this: A bailor seeking to recover from a warehouseman for the non-delivery of goods, or an injury thereto, must prove negligence. When he shows that the goods were not delivered on demand, or were delivered in a damaged condition, he has made a prima facie case. If the defendant accounts for the non-delivery or injury by showing that the goods were stolen, or were lost or damaged by fire, or in any other manner consistent with the exercise of ordinary care on his part, the plaintiff's prima facie case is overcome, and he must prove positive negligence occasioning the loss.

NATURE, VALUE, AND CONDITION OF PROPERTY AS AFFECTING QUESTION OF DUE DILIGENCE.--No doubt the intrinsic value of the property committed to the charge of a warehouseman, as well as its nature with respect to liability to injury, has an important bearing as affecting the question whether or not he has been guilty of negligence in storing it. He is not " expected to take the same care of a bag of oats as of a bag of dollars; of a bale of cotton as of a box of diamonds or other jewelry; of a load of wood as of a box of rare paintings:" Hatchett v. Gibson, 13 Ala. 587. Nor is the same