Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1912-11-18
Aroostook County.

J. Fl. Donnell VS.. Canadian Pacific
Railway co. Rescript, Spear, J.
This case, coming up on report inn
poses jury powers upon the court. 1t
is the opinion of the court that the
following facts may be found upon a
preponderance Of evidence This is an
action of troVer for the conversion of
personal property consisting of various
kinds Of merchandise of the alleged
value Of $500, the amount of which is
not in dispute. The plaintiff was a
large dealer in groceries, provisions
and feed in the village of Pressure Isle
and had been so engaged for at least
seven years. The defendant is a rail-
road corporation having a station,
freight-housc and place of business at
Pressure Isle.
The defendant company end the Ban
gor & Aroostook Railroad Company
are competing roads as common carri-
crs of freight at Presque Isle Prior
to the 18th day Of June, 1909 for several
years the plaintiff had an agreement
with the defendant that the bulk of his
freight coming in car load lots could
come over the defendant road. and
thai in consideration for this business
ton OF its freight house for the stor-
age of these goods and keep them sep
crate from the goods of other shippers,
and allow the plaintiff and his servants
at any time to remove them, for the
storage of which no charge was to be
made. This arrangement was admit
ted by the defendants agent, and had
existed for some years prior to the
4. Al .farE5.-
the defendant. his agents and employ
ees had been furnished with key
whenever called for for the purpose of
storing, and removing, goods from the
storehouse. Previous to the day of
the fire neither the plaintiff nor anyone
of his employees had ever been re-
fused the use of the key, upon request,
to give them access to the building.
On the afternoon of June {, 1909. a
fire started in The western part of the
village of Pressure Isle about one-half
mile from the freight and storehouse
of the defendant, which rapidly devel-
oped, threatened, and finally consumed
a large part of. the village including
the freight-house in question. At this
time the goods alleged to have been
converted, together with five barrels of
sugar which were removed, were in the
storehouse without insurance. When
the plaintitf became alarmed at the
progress of the fire he took his team
with three servants and proceeded to
the storehouse. Immediately upon ar
irving he sent one of his men, Mr.. Nc
kenney, who had long been a clerk in
his store and we'll known to the de-
PENDANTS agent as his clerk, to obtain
the key TO the storehouse to enable
him to unlock it and remove his goods
| to a place of safety.
This was from three quarters of an
| hour to an hour before the fire was
communicated TO the freight house.
The defendants agent, although he
said in his testimony Il presumed he
wanted the key for the purpose of re-
moving his goods refused to deliver
tie key. He also says that he gave
Mr.. McKenney no rea son whatever for
refusing him the key. Mckinney re-
tured without the key, and the plain
tiff himself then proceeded to the sta
ton, found the defendants agent and
requested the key. AS to what occurr-
ed between the plaintiff and the de-
PENDANTS agent with reference to what
seems 10 have been a fatal delay in
not turning over the key to the plain
tiff, there appears to be material
conflict in the testimony, which must
be solved in the light of the circum-
stances and proba because it is
not controverted that the plaintiff, had
he been given the key when he first
approached the agent, would have been
able to save all his goods. Therefore,
the loss of the time between the re-
quest for the key and receiving it was
responsible for the burning of the
goods. The defendant contends that
this loss of time was due to the vol
untary concession of the plaintiff based
upon the conclusion that the store
house was not in danger. The plain
tiff however, contends that he was
unable to obtain the key until the
burning of the warehouse was iminent.
In confederation of the plaintiffs con-
tention it should be observed that the
defendants agent admits that the first
time the plaintiff made demand on him
for the key he refused to deliver it
except on condition that he would
become responsible for any goods lost
outside of his own
We are of the opinion that the plain
tiff's contention must be sustained.
Judgment for the plaintiff for $500
and interest from the date of the writ.