England v. Lyon Fireproof Storage Co.

This is an appeal from a judgment and verdict for $4,000 damages on account of the theft of goods while stored in the defendant’s warehouse at Los Angeles. The defendant was engaged in warehouse business at that city. The plaintiff and his family were about to leave their residence in Los Angeles to travel abroad, and on December 10, 1920, he packed their household goods in various boxes and containers and hauled them to the warehouse of defendant for storage during their absence. These goods were received by the defendant and the packages were consecutively numbered from 1 to 57, inclusive, and listed upon duplicate warehouse receipts, one of which was retained by the defendant and the other was delivered to the plaintiff. A few days later other boxes and packages of household goods and effects were also delivered to the defendant. This second consignment included seven cases of whisky, the contents of which were made known to the defendant. These goods were also numbered and listed on the back of defendant’s original warehouse receipt, but a duplicate of this last list was not given to the plaintiff. The entire consignment of goods was stored in a separate room in defendant’s warehouse and the door to the room was securely locked. No other person’s goods were placed in this same storeroom. Several employees of the defendant held pass-keys to all the rooms of the warehouse, including the room in which plaintiff’s goods were stored. When the pass-keys became worn and failed to operate in the locks, new ones were procured and the old ones were carelessly thrown into the waste-baskets or rubbish. Upon other occasions liquor had been stolen from the warehouse, and once, another storeroom had been burglarized.

Upon plaintiff’s return after three years’ absence he called upon the defendant to reclaim his property. On going to his storeroom the employee who accompanied him fumbled with the lock and complained about the difficulty of opening it. Upon unlocking and entering the storeroom, however, he found three boxes opened, empty, and the contents missing, including a number of valuable pictures, hand-painted china, porcelain and Dresden ware, bronze and ivory statues, bric-a-brac, rugs and laces of rare value, together with the entire stock of liquor. The liquor was stipulated to be worth $400. Suit was brought against the defendant for negligently suffering the theft of the goods, and a verdict of $4,000 was rendered against the defendant.

The defendant seeks a reversal of the judgment on the ground that (1) the boxes in question were received empty, and asserts that the theft never occurred; that (2) the judgment is not supported by the evidence, for the reason that there is a total lack of proof of negligence proximately contributing to the theft; that (3) the liability of the defendant was specifically limited by the provisions of section 1840 of the Civil Code and the language of the warehouse receipt to $25 per package, and that (4) the trial court erred in giving and refusing certain instructions.

Defendant’s contentions that the boxes in question were empty when they were delivered for storage, and that the theft did not occur, are without merit. The plaintiff himself testified to the packing and specific contents of these boxes, each item of which is mentioned in the complaint. He accompanied the van which hauled them to the warehouse, and went with them to the sixth floor and saw them packed in the storeroom. Defendant’s manager accepted and listed on the warehouse receipt each of these boxes. The liquor was first brought to the warehouse wrapped in heavy paper and without the necessary government permit for removal. The defendant refused to accept it for storage in this condition, and it was returned and repacked in one

In the absence of a specific agreement to the contrary, a bailee or proprietor of a general warehouse does not become an insurer of property against theft. All that is required of him is the exercise of ordinary care for the protection of the owner’s property such as would be used by the owner himself under similar circumstances. The question as to what constitutes reasonable care on the part of a bailee for hire depends largely upon the circumstances of the particular case and upon the value and character of the property entrusted to him. (California Warehouse Act, Stats. 1909, chap. 290, sec. 21; 25 Cal. Jur., p. 957, sec. 16; 27 R. C. L. 992, sec. 51; 6 C. J. 1121, sec. 61; 3 R. C. L. 96, sec. 23; Runkle v. Southern Pac. Milling Co., 184 Cal. 714 [ 16 A. L. R. 275 , 195 Pac. 398 ]; Webber v. Bank of Tracy, 66 Cal. App. 29 , 33 [ 225 Pac. 41 ]; Firestone Tire & Rubber Co. v. Pacific Transfer Co., 120 Wash. 665 [ 26 A. L. R. 217 , and note, 208 Pac. 55 ].) Mere evidence of the theft of goods left in the custody of a bailee, even though they were stolen by his servant or employee, is insufficient to charge him with negligence and liability for their loss, and the burden is upon the owner to supply evidence from which it may be reasonably inferred that the bailee was guilty of negligence either in the employment of his servants or the management of his business, which negligence proximately contributed to the loss of the goods. (27 R. C. L. 993, sec. 51; 40 Cyc. 472, sec. 6; Firestone Tire &

In 27 Ruling Case Law, 992, it is said “A warehouseman is bound to exercise reasonable care to avoid the theft of the stored goods. . . . Such a company is required to use that degree of care in the safekeeping of property which is demanded from a bailee in the keeping of valuable property. He must use such care in the protection of the property from thieves without and thieves within, in the selection of its employees, and in the supervision of their conduct.” (Cussen v. Southern California Savings Bank, 133 Cal. 534 [ 85 Am. St. Rep. 221 , 65 Pac. 1099 ].) In the case last cited it.was held that a bank was liable to the owner for a theft of valuable articles taken from a safe-deposit box, where it was shown that one of the duplicate keys to the box was left accessible to the employees of the bank, and where the vault had been placed in the custody of a seventeen year old lad employed without previous inquiry as to his honesty, and who was paid but $30 per month for his services, and remained in the service of the bank but three months. In sustaining a verdict of a jury in that case, it was said: “The jury might well say that proper care was not exercised in the selection or rejection of this employee.” In that case Justice Garoutte quoted with approval from

It will thus be seen that a bailee for. hire, who conducts a regular business of storing goods for hire, must exercise due diligence and ordinary care commensurate with the value of the goods stored and the circumstances of the case, to protect the bailor’s property from damage or theft from both without and within the warehouse. He must provide buildings, storage apartments and facilities for locking the doors and windows adequate to safeguard the goods with ordinary care against the depredations of thieves, and he must exercise due care in the employment and retaining of men about the storehouse, of known honesty and ability.

In the present case it may be inferred from the verdict that the jury of necessity found not only that the plaintiff’s goods were stolen, but that the defendant was guilty of negligence in the hiring and retaining of employees and the conduct of his warehouse business which proximately contributed to the theft. These findings are supported by substantial evidence. Among the goods which were stored and stolen were seven cases of liquor. The defendant had previously lost by theft other consignments of liquor. It had been warned that a certain employee who worked about the storehouse was a bootlegger, which charge imputed dishonesty to the employee: The president of the corporation defendant was suspicious of this employee, and hired a detective to watch him, yet he was not discharged. The plaintiff’s goods were stored in a separate room apart from all other goods, and the door to this room was securely locked. There was no occasion for any employee to visit this room or to have access thereto during the absence of

The case of Firestone Tire & Rubber Co. v. Pacific Transfer Co., supra, is relied upon by appellant in support of its contention that the evidence in the present case does not uphold the findings of negligence on its part. The facts of that case, however, were radically different from those of the present case. The record discloses the fact that plaintiff rented a space in the defendant’s warehouse, in which to store a large quantity of automobile tires. This space was inclosed with a lattice partition which extended only within three feet of the ceiling, thus leaving an aperture over which one could easily climb. The plaintiff was furnished keys to this inclosure and to the warehouse, and always had free access to both. It was not assumed by the parties that this inclosure was burglar-proof. It was constructed and maintained as a mere convenience by means of which to keep plaintiff’s tires separate from other goods which were stored in the warehouse. No goods had been previously stolen from the warehouse, and there was neither suspicion on the part of the defendant nor warning received regarding the dishonesty of its employees. Two of the defendant’s servants did, however, steal the tires. The evidence was deemed to be insufficient to uphold a finding of negligence on the part of the defendant. The foregoing recital of facts readily distinguishes that case from the present one without the neees

The appellant claims that the damages for loss of the goods in question was limited by contract to the sum of $25 per package. It is true that when the first 57 packages were received and listed a duplicate warehouse receipt signed by respondent was given to him, and contained the following provision: “It is agreed that said goods shall be stored at owner’s risk of damage by moth, vermin, rust, fire, heat, leakage, or injury to fragile articles that are not packed. . . . The responsibility of this warehouse for any piece or package, or its contents, is limited to the sum of $25, unless the value thereof is made known at the time of the storing, and receipted for in the schedule, and an additional charge made for the higher valuation. ...”

In the absence of negligence on the part of a bailee, the owner of goods who signs a warehouse receipt for their custody, will ordinarily be bound by the express terms and conditions of his contract. (25 Cal. Jur. 962, sec. 18; 27 R. C. L. 997, sec. 57; Taussig v. Bode, 134 Cal. 260 [ 86 Am. St. Rep. 250 , 54 L. R. A. 774 , 66 Pac. 259 ]; McMullin v. Lyon Fireproof Storage Co., 74 Cal. App. 87 , 95 [ 239 Pac. 422 ]; Cunningham v. International Com. of Y. M. C. A., 51 Cal. App. 487 [ 197 Pac. 140 ]; Wilson v. Transfer & Storage Co., 201 Cal. 701 [ 258 Pac. 596 ].) But a warehouseman may not limit his liability for damage or loss of goods stored with him for hire, so as to exempt himself from damages resulting from his own negligence, nor to relieve himself from the exercise of ordinary care. The trend of modern authorities holds that such an effort on the part of a bailee to exempt himself from negligence is contrary to public policy. (Dieterle v. Bekin, 143 Cal. 683 , 688 [ 77 Pac. 664 ]; Northwestern M. F. Assn. v. Pacific W. & S. Co., 187 Cal. 38 , 41 [ 200 Pac. 934 ]; Taussig v. Bode, supra; Morse v. Imperial Grain & Warehouse Co., 40 Cal. App. 574 [ 181 Pac. 815 ]; Langford v. Nevin, 117 Tex. 130 [ 298 S. W. 536 ]; Carley v. Offutt, 136 Ky. 212 [ 136 Am. St. Rep. 207 , 248, note, 26 L. R. A. (N. S.) 1114 , 124 S. W. 280 ]; 40 Cyc. 437; 27 R. C. L. 997, sec. 57.) Section 21 of the California Warehouse Act (Stats. 1909, p. 437), provides: “A warehouseman shall be liable for

Finally, the appellant assigns as error the giving and refusing of certain instructions by the court. Defend

The court also refused to give defendant’s instructions numbered 2-D, 13, 13-A, and 15, to the effect that by delivering to respondent the duplicate warehouse receipt upon which was listed the first delivery of packages numbered from 1 to 57, inclusive, together with the printed notice of a $25 limitation of liability thereto attached, that he acquiesced in such limitation of value as to all subsequent boxes delivered, for the reason that all the goods were

The jury were specifically instructed, in the language of section 1840 of the Civil Code, that the amount of damages recoverable for the loss of goods through the negligence of a bailee, was limited to the value thereof as disclosed by the owner, unless the bailee had reason to otherwise know of its value. The jury were also fully instructed that the right to recover depended entirely upon proof of the negligence of the bailee.

The court correctly instructed the jury that: “The defendant cannot limit its liability against its own negligence by contract, and any contract to that effect would be void.” Moreover, the jury was fully, fairly and correctly instructed regarding the measure of damages for the loss of goods resulting from the negligence of a bailee, as follows: “It is an express provision of the law that the liability of a depositary for negligence cannot exceed the amount which he is informed by the depositor, or has reason to suppose the thing deposited to be worth.” (Sec. 1840, Civ. Code.) And, further, that: “If you believe from the evidence that the plaintiff did not inform the defendant of the value of the contents of the boxes in question, its liability cannot exceed the amount which it had reason to suppose the contents of the boxes to be worth.” The jury was also further instructed that: “If you believe from the evidence that the plaintiff did inform the defendant that said boxes contained whiskey, but did not inform the defendant that they contained any other valuable articles, and that the defendant did not have reason to suppose that they contained

For the foregoing reasons the judgment is modified to allow damages only for the loss of the stipulated value of the liquor, plus the added liability of $25 per package limited by the provisions of section 1840 of the Civil Code, aggregating the sum of $475. As so modified, the judgment is affirmed. The appellant will recover its costs.

Hart, Acting P. J., and Plummer, J., concurred.