Appeal from judgment of Court of Common Pleas of Delaware County, June T., 1962, No. 3471, in case of Glen C. Rohr et al. v. James C. Logan.
Robert B. Surrick, with him Cramp & D'Iorio, for appellant.
William F. Sullivan, Jr., with him Obermayer, Rebmann, Maxwell & Hippel, for appellees.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Wright, J.
[ 206 Pa. Super. Page 233]
On September 10, 1962, Glen C. Rohr and Sandra Rohr, his wife, instituted suit in assumpsit against James C. Logan on a cause of action hereinafter detailed.
[ 206 Pa. Super. Page 234]
The trial before the late Judge Toal and a jury resulted in a verdict in favor of the plaintiffs in the sum of $4,617.63. Defendant's motions for new trial and judgment n.o.v. were dismissed by the court en banc, and judgment was entered on the verdict. This appeal followed.
On June 20, 1962, Mr. and Mrs. Rohr were residing in Ridley Park, Delaware County, and appellant was engaged in two businesses at 333 Rose Street in the City of Chester. He was a certificated common carrier of household goods, and also a public warehouseman. On the date mentioned, appellant orally agreed with Mr. and Mrs. Rohr to accept their household goods for temporary storage and eventual delivery to a then undetermined city to which Mr. Rohr was to be transferred by the Bethlehem Steel Company. Appellant received the sum of $27.00 for moving the goods to his warehouse, and was to be paid $20.00 per month for each month of storage until notified of definite shipping instructions. On August 6 or 7, 1962, the Rohrs orally directed appellant to ship the goods to Buffalo, New York, and agreed to pay the sum of $200.00 for the transfer. Appellant accepted the shipping instructions, and agreed to transfer the goods at the earliest practical opportunity in the usual course of business. No precise date was set for the shipment. On August 8, 1962, a fire occurred in appellant's warehouse and the goods were damaged by flames, smoke and water.
It was the position of the Rohrs at the trial that their goods were in appellant's possession in his capacity as a common carrier, and that appellant was an insurer of the safety of the goods. It was appellant's position that his possession was that of a bailee, not a common carrier, that there was no negligence on his part, and that the loss was due to a catastrophe,*fn1 namely,
[ 206 Pa. Super. Page 235]
fire caused by lightning. The trial judge instructed the jury that, as a matter of law under the pleadings, the relationship of bailor-bailee had been changed to the relationship of shipper-common carrier. He submitted to the jury the question whether the fire was caused by lightning, as to which defense appellant had adduced testimony. The question of the amount of damages was also submitted to the jury.
Appellant first contends that oral instructions from a bailor to a bailee-warehouseman to ship the bailor's warehoused goods to a specified location, without more, will not change the legal relationship of bailor-bailee to that of shipper-common carrier and thereby enlarge the duty of care owed by the bailee. The authorities are to the contrary. When appellant accepted oral instructions to ship the goods at the earliest practical opportunity in the usual course of his business, his status with relation to the goods became that of a common carrier. Where the shipper alters a previous direction to the carrier to hold the goods for further instructions "and gives orders to forward the goods, the liability as carrier immediately attaches": 13 C.J.S. Carriers Section 145. And see 13 Am. Jur. 2d, Carriers Section 255. Although the original relationship between the parties was one of bailor-bailee, the bailee-warehouseman became a common carrier immediately upon acceptance of ...