Anderson v. Murdoch Storage & Transfer Co. , 1952 Pa. LEXIS 411 ( 1952 )

Opinion by Mr.

Justice Bell,

Plaintiff brought an action in assumpsit for loss of household goods stored by defendants in the warehouse of the defendant corporation. Plaintiff not only proved the storage of his goods and the demand for their return, but also the destruction thereof by fire. The Court below entered a nonsuit which the Court en banc refused to remove.

The most important question is whether certain testimony of plaintiff’s wife, which induced the written contract, and concerned a provision covered therein, was admissible. The pertinent facts are as follows: The individual defendants, David Y. Murdoch and Edward A. Murdoch, trading and doing business as Murdoch Storage and Transfer Co., are in the Haulage and Transportation business only, and therefore there is no complaint as to the judgment of nonsuit as to them.

The corporate defendant, Murdoch Storage and Transfer Co., Inc., was on, and before, February 1944, engaged in the business of warehousemen, having warehouses and facilities at No. 546 Neville Street, Pittsburgh, and No. 900 Penn Avenue, Wilkinsburg, Allegheny County.

The complaint averred that on February 29, 1944, a storage order and agreement was issued, and delivered to plaintiff covering the storage of his goods. A copy of this and of the corporate defendant’s warehouse receipt and contract, also dated February 29,1944, were attached to the complaint. The complaint further alleged that at the time the storage order was issued, one of the individual defendants, Edward A. Murdoch, stated to the wife of the plaintiff that the furniture and goods would be stored in a separate fireproof room at No. 546 Neville Street, Pittsburgh, and that insurance would be carried by the individual defendants and there would be no need for plaintiff to carry insurance on the furniture. There was no testimony offered at the trial to prove Murdoch promised that the individual defendants would carry insurance on this furniture and it was therefore presumably abandoned.

Complainant further alleged that the plaintiff’s goods were placed in the corporate defendant’s warehouse at No. 900 Penn Avenue, Wilkinsburg, which was not fireproof, and that the goods were not placed in a separate fireproof room, but allowed to remain in a large room with goods of other customers. Complainant also alleged and proved that on October 24, 1944, this warehouse at No. 900 Penn Avenue, Wilkinsburg, was completely destroyed by fire as was also the plaintiff’s goods and all other goods in the warehouse, and consequently it is unimportant whether or not the plaintiff’s goods were stored in one large room with the goods of other customers or in a separate locked room.

The claim for damages was based on the allegation that the corporate defendant did not: 1. Maintain a

fireproof warehouse. 2. Did not store plaintiff’s goods in a separate fireproof room. 3. That the fire and the destruction of the plaintiff’s goods by it, was the result of the negligence of the corporate defendant.

At the trial Bertha Anderson, wife of the plaintiff, testified about the alleged telephone conversation in February, 1944, with a Mr. Murdoch, at the corporate defendant’s offices at Neville Street, to the effect that the goods to be stored would be put in a fireproof building in a separate locked room. However, she admitted in cross examination that in July, 1944, she went to the warehouse of the corporate defendant at Wilkinsburg to remove some of the goods and to arrange for some furniture to be shipped to Fort Knox, Kentucky, where she and her husband were then residing, and that she realized that the Wilkinsburg warehouse in which plaintiff’s goods were actually stored was a wooden and not a fireproof building.

Plaintiff himself admitted that he received the warehouse receipt and contract by mail on March 4, 1944. This contract provided, inter alia, as follows: “Goods are stored at owner’s risk of loss or damage by moth, rust, fire or theft occurring at or after fire, deterioration by time, and ordinary wear and tear in handling.”^* Plaintiff also admitted that in May, 1944, he went to the warehouse at Wilkinsburg to obtain some articles and saw where and how his property was stored.

Since the complaint did not aver that these alleged oral representations to which Mrs. Anderson testified were omitted from the written contract by fraud, accident or mistake, and since they varied or contradicted the written contract, the trial court was correct in striking from the record this testimony. We have recently so thoroughly discussed the question of the admissibility of parol evidence to alter a written contract and so firmly and, we believe, clearly enunciated the principles applicable thereto that we deem further discussion unnecessary. See Grubb v. Rockey, 366 Pa. 592, 79 A.2d 255; O’Brien v. O’Brien, 362 Pa. 66, 66 A.2d 309; Walker v. Saricks, 360 Pa. 594, 63 A.2d 9; Speier v. Michelson, 303 Pa. 66, 154 A. 127; Gianni v. Russell, 281 Pa. 320, 126 A. 791; Phillips Gas Co. v. Kline, 368 Pa. 516, 84 A.2d 301.

Plaintiff in the complaint and at trial assumed the burden of proving that the loss sustained was due to the negligence of the corporate defendant. None of the testimony offered by the plaintiff would permit a jury to infer that the fire was the result of defendant’s negligence.

Since the plaintiff proved not only the storage of his goods and his demand for and defendants’ failure to return them, but also that the goods were destroyed by a fire which, occurred without auy negligence on the part of the defendants, he cannot recover: National Line Steamship Co. v. Smart, 107 Pa. 492, 501; Farnham v. Camden & Amboy Railroad Co., 55 Pa. 53, 61; Sheehan v. American Railway Express, 91 Pa. Superior Ct. 71, 76; Moyer v. Pennsylvania Railroad, 31 Pa. Superior Ct. 559, 562; Schell v. Miller North Broad Storage Co., 142 Pa. Superior Ct. 293, 296 (affirmed in 353 Pa. 319, 45 A.2d 53); Hershey v. Pittsburgh & West Virginia Railway Company, 366 Pa. 158, 76 A.2d 379.

There was some testimony from Bertha Anderson that in July, 1944, after she had gone to the warehouse in Willdnsburg to remove some articles, she phoned the corporate defendant’s office and ashed if it carried any insurance on their goods. When informed that no insurance was carried, she said she was told that if the plaintiff wanted insurance it would be obtained for him at his expense, but later admitted she said that she herself would get the insurance at her own expense. This attempt to change the written agreement by a subsequent oral agreement was not pleaded and therefore was properly strichen from the record: see Anflick v. Gruhler, 353 Pa. 470, 46 A. 2d 161; Aland v. P-G Publishing Co., 337 Pa. 259, 10 A. 2d 5; Namy v. Black, 367 Pa. 523, 80 A. 2d 744. Moreover her testimony on this point was not only indefinite and uncertain but was unsupported by any consideration and hence even if pleaded could not change the original contract: Stoner v. Sley System Garages, 353 Pa. 532, 46 A. 2d 172; National Bank of Fayette Co. v. Valentich, 343 Pa. 132, 22 A. 2d 724.

The doctrine of exclusive control contended for by plaintiff is clearly inapplicable to a case such as this: see Miller v. Hickey, 368 Pa. 317, 81 A.2d. 910.

Judgment affirmed.

* Italics throughout, ours.