
    HORACE B. CLAFLIN, et al., Plaintiffs and Respondents, v. HENRY J. MEYER, Defendant and Appellant.
    WAREHOUSEMEN, THEIR DUTIES AND RESPONSIBILITIES.
    Presumption op negligence arising prom non-delivery
    OP GOODS.
    The rule is well settled that upon proof of the non-delivery of goods stored with a warehouseman, a presumption of negligence arises, and the burden of proof lies with the warehouseman to account for the loss, and to show that it was not caused by want of proper care and diligence on his part. (See many cases cited by court.) .
    A larceny of goods occurring in consequence of neglect of warehouseman constitutes a conversion by virtue of a wrongful taking, and no demand by the owner is necessary after notification to warehouseman of loss of the goods.
    The fact that the goods were stolen from a U. S. bonded warehouse, and were bonded goods, does not change or affect defendant’s liability (Schwerin «. McKee, 51 JV. T. 180).
    
      
      Decided, June 25, 1877.
    Before Sedgwick, Speir and Freedman, JJ.
    Appeal by defendant from a judgment for $16,523.55 in favor of plaintiffs, entered upon the report of three referees.
    The action was brought to recover damages for a conversion of goods by a warehouseman.
    The answer was that the goods had been stolen without fault on the part of defendant.
    It was admitted that the warehouse in question was a United States bonded warehouse. On that proof, and the admission that the defendants were unable to deliver the goods in question to the plaintiffs, the plaintiffs rested their case.
    The three referees, at the request, by the consent, and in the presence of both the attorneys and counsel of the respective parties, and of the defendant in person, went upon and viewed the warehouse of the defendant in which the goods in question had been stored, and upon the proof and such examination they found, as matter of fact, that the goods in question had been stored by plaintiffs with defendant; that between November 11 and 13, 1871, the goods were stolen and carried away ; that the defendant was thereby unable to deliver the same to the plaintiffs ; and that the defendant, during the time the said goods were in his warehouse, did not use that care in keeping and protecting the same that an ordinarily prudent man would under the circumstances have exercised, and that defendants were guilty of negligence in not using such care. The referees also found that the goods were stolen without the knowledge, consent, and connivance of the defendant or any of his servants.
    
      R. W. Townsend, attorney, and A. R. Dyett, of counsel for appellant, among other things, urged :
    I.— The defendant, being a warehouseman, was liable only for ordinary care, which is that care that an ordinary prudent man would under the same circumstances have exercised in relation to the protection and safe keeping of his own property, and the referees so defined it; and he is not liable for goods stolen from his warehouse unless the theft be occasioned by his own gross negligence (Schmidt v. Blood, 9 Wend. 268). 2. ¡Negligence of whatever degree is an omission to do what ought to be done (Shearm. and Redf. Neg. §§ 2-6 ; 5 Denio, 255, 266 ; 4 N. Y. 349 ; 1 Duer, 571, 573). And some proof of such negligence must always be given by the plaintiff in every case, except in cases against common carriers of goods, who are liable apart from actual negligence, and carriers of passengers, against whom, from motives of public policy, a presumption of negligence is indulged (Wilde n. H. R. Co., 24 N. Y. 430 ; Leroy v. N. Y. Central Railroad Co., 22 Id. 514; Robbins v. Mount, 4 Robertson, 553; Moore v. Goedel, 7 Bosw. 591; 534 N. Y. 527 ; S. C., Eaken v. Brown, 1 E. D. Smith, 36, 44; Waldron v. R. & S. R. R. Co., 8 Barb. 395; Ross v. Fedden, 41 Law Journal [N. S.] Q. B. 270; McGinty v. The Mayor, &c., 5 Duer, 674). It is true that in this case, a failure by the defendant on demand to deliver the goods, prima facie, entitled the plaintiff to recover, but when the defendant proved, as he did, that the goods were stolen without the consent, knowledge or connivance of himself or any of his servants, as the referees found, the onus probandi was cast upon the plaintiff to prove negligence on his part (Arent v. Squire, 1 Daly, 347, at page 350, et seq.; Schmidt v. Blood, 9 Wend. 268; Foote v. Storrs, 2 Barb. 326 ; Bush v. Miller, 13 Barb. 489 ; Story on Bailments, § 454, and cases there cited; 2 Parsons on Contracts, 143; 6 Roberts. 419 ; 3 Barb. 383 ; 13 Barb. 489; 9 How. 
      327 ; 20 Barb. 252; 22 How. 141). 3. There was no proof of >any negligence on the part of the defendant, and although the referees found that he did not exercise the care that an ordinary prudent man would under the same circumstances, have exercised in relation to the protection and safe keeping of his property, there was not a scintilla of proof before the referees as to what that care was—in other words, as to what ordinary prudent men would have done under the same circumstances in reference to the protection and safe keeping of their own property. There was no proof that any specific act or thing which ordinary prudent men—or any other men—for that matter—did, was omitted by the defendant. The referees, therefore, had no standard of comparison. 4. Besides, to charge a party with negligence, the acts or precautions omitted, forming the basis of liability, must be such as if done or taken, would probably have prevented the occurrence which occasioned the injury. And there must be some proof of this, unless the common experience of mankind will suffice to reach that conclusion (Daniel v. Metropolitan Rl., Law Rep. Com. Pleas, 1867-1868, vol. 3 ; Cochran v. Dinsmore, 49 N. Y. 249 ; The Russ. M. Co. The N. H. R. R. Co., 50 Id. 121). These elements are all wanting in this case. 5. The defendant, it must be remembered, is not a carrier of passengers, who is bound to adopt all and every known means to secure the safety of his passengers, but a warehouseman, liable only for neglect to use such means as ordinarily prudent men would, to protect their own goods in similar circumstances. Even a carrier of passengers, however, must be shown to know of the omitted means, precautions, or they must be so generally used, as to charge him with negligence in not discovering and using them (Steinwig v. Erie R. R. Co., 43 N. Y. 122 ; Bowen v. N. Y. C: R. R. Co., 18 Id. 408; Field v. Same, 32 Id. 399 ; Shearman and Redfield on 
      Negligence, § 266 (a); Hegeman v. West R. R. Co., 13 N. Y. 9).
    II. The referees erred in allowing the duties, amounting to $4,707.83, as part of the value of the goods. 1. The defendants have never paid or been asked to pay those duties. 2. The condition of the bond that they gave for the duties is, that the duties should be paid upon the withdrawal of the goods from the warehouse by the plaintiffs for consumption. The felonious taking of the goods from the warehouse by thieves, without any complicity on the part of the plaintiffs, can hardly be said to be a withdrawal of the goods within the meaning of the act of Congress. The defendant, therefore, was not liable for these duties. 3. But if the defendant is liable to the plaintiffs for their property in these goods, he is equally liable to the United States for its special property in the goods, which is their lien for the amount of these duties, and the plaintiffs not having paid them, if the defendant pays them the money, he is unprotected from the claim of the United States against him for them, in case the plaintiffs do not pay them to the government.' See form of defendant’s bond as warehouseman to U. S., general regulation of custom and navigation laws of U. S. 1874, p. 240 ; also form of plaintiff’s bond to pay duties, Id. 262, Art. 598. And as to lien of U. S. for duties, Id. 213, Art. 466 ; necessity of permit, &c., Id. 368; Art. 774, and p. 268, Art. 612, to p. 271, U. S. revised statutes, sections 249, 2,652, 4,792, and section 2,960. Although the duties be a personal debt to the U. S. they cannot be collected by action until the goods be delivered to the importer, nor. at all events until after the three years specified in the bond, supra, and which had not expired when this action was brought. 4. As already stated goods in bonded warehouses are by the act of Congress in the joint custody of the warehouseman and the government, but these goods in fact, if stolen during the night or on Sunday, were in the sole charge and custody of the government. In either event the government is liable to the plaintiffs; in the one case jointly with the defendant, and in the other solely, and cannot recover from them the duties on the goods while unable for such a reason to deliver them. The plaintiffs it must be remembered are totally without fault in the premises. The expression in the act of Congress that goods in bonded warehouses are “at the risk” of the importer, does not cover negligence as one of those risks (Schwerin v. McKie, 51 N. Y. 180 ; Davenport v. Ruckman, 37 Id. at p. 574; Colegrove v. N. Y. & H. R. R. Co., 20 Id. 492). Nor does it mean that they risk anything more in any event than the loss of the goods. To illustrate : if goods be carried at the risk of the owner, actual negligence of the carrier is not included, but he is liable for want of ordinary care—the precise liability of the warehouseman (29 Barb. 132 ; 7 Hill, 533; 14 Barb. 524). In such a case the owner is not liable to pay freight. Indeed, the owner is not liable for freight if the goods be lost by any cause.
    III. This action is for a breach of the defendant’s agreement to deliver the goods, and not for negligence. It is the defendant who sets up, in substance, that the goods were stolen without his fault. It was admitted on the trial as well as shown by the regulations, supra, that the plaintiffs had no right to receive the goods from the defendant without a custom-house permit, and after the duties were paid, and they had never paid those duties, nor produced a permit. This is fatal to the right to recover. If the want of a permit could be gotten over, the objection that they had not paid the duties, would be fatal, for this reason: the plaintiffs had. no right to receive the goods from the defendant, nor had he any right, nor was it his duty, to deliver the goods to them. Until the plaintiff paid the duties, the United States had a Hen upon them for the amount of them, notwithstanding the bond, which was an additional security, and as the plaintiffs have sued for non-delivery, and not for negligence, whereby they suffered damages to the amount of their property in the goods, they must stand or fall by their complaint (Barnes v. Quigley, 59 N. Y. 265 ; Graham v. Reed, 57 Id. 681; Dudley v. Scranton, Id. 424).
    Arnoux, Ritch & Woodford, attorneys, and William Henry Arnoux, of counsel, for respondents.
   By the Court.—Freedman, J.

—It may now be deemed settled that upon proof of the non-deHvery of the goods stored a presumption of negligence arises, and the burden of proof is thereupon cast upon the warehouseman to account fully for the loss and to show that the loss, however it may have occurred, was not caused by any want of proper care and diligence on his part (Coleman v. Livingston, 36 N. Y. Superior C. [4 J. & S.] 37; reargued, Id. 231; and affirmed, 56 N. Y. 658 ; Burnell v. N. Y. Central R. R. Co., 45 Id. 184; Fairfax v. N. Y. Central & Hudson R. R. R. Co., in the court of appeals, not yet reported).

Under these decisions, and upon the evidence and a view of the premises, the referees were justified in finding that the defendant had not exercised the care that a prudent man would under the same circumstances have exercised in relation to the protection and safe keeping of his own property, and that in consequence of such neglect plaintiffs’ goods were stolen and carried away.

After the defendant himself had notified the plaintiffs of the theft of the goods, a formal demand upon him for the goods would have been an idle ceremony. The larceny occurring in consequence of defendant’s neglect constituted a conversion by virtue of a wrongful taking, and no subsequent demand was necessary after defendant himself had notified the plaintiffs of the loss of the goods.

The fact that defendant’s warehouse was bonded to the United States and that the goods stolen were bonded goods, does not change defendant’s liability. In Schwerin v. McKie, 51 N. Y. 180,. the court of appeals held that the provision of the act of Congress of 1852 (10 U. S. Stat. at L. 270), which provides that goods , deposited in a private bounded warehouse authorized by that act, shall be at the exclusive risk of the owner or importer, was intended solely for the benefit of the goverment, and does not relieve the warehouse-keeper from the duty of exercising ordinary care and prudence, nor from the liabilities of other warehousemen to their patrons.

The defendant admitted that the market value in the city of Mew York of the goods at the time of their loss and at the commencement of the action was $12,084.83. The referees therefore very properly gave judgment for that amount and interest. The fact that the duties on the goods had not yet been paid, cannot diminish this liability. Under the laws of the United States the plaintiffs are liable for the duties. They gave a bond for their payment, and the withdrawal of the goods from the warehouse makes them liable to pay the duty, no matter how, where, or by whom the goods were withdrawn (9 U. S. Stat. at L. 53).

The exceptions to the exclusion of evidence are clearly untenable.

The judgment should be affirmed with costs.

Sedgwick and Speib, JJ., concurred.  