Colburn v. Washington State Art Ass'n

• Decision Date: 30 July 1914
• Docket Number: 11841.
• Citation: 141 P. 1153,80 Wash. 662
• Court: Washington Supreme Court
• Parties: COLBURN v. WASHINGTON STATE ART ASS'N.

141 P. 1153

80 Wash. 662

COLBURN v. WASHINGTON STATE ART ASS'N.

No. 11841.

Supreme Court of Washington

July 30, 1914

Department 2. Appeal from Superior Court, King County; Kenneth Mackintosh, Judge.

Action by A. E. Colburn against the Washington State Art Association. Judgment for plaintiff, and defendant appeals. Reversed and cause dismissed.

Claude E. Stevens and Roney & Loveless, all of Seattle, for appellant.

Elias A. Wright and Sam A. Wright, both of Seattle, for respondent.

PARKER J.

The plaintiff seeks recovery of damages resulting from the loss of certain of his goods by theft while they were on exhibition in the defendant's museum among curios and works of art belonging to it and others. The plaintiff's claim seems to be principally rested upon the theory that his goods were in the possession of the defendant as a mere loan for its sole benefit, under an agreement by it to return them, amounting to a guaranty to make such return, and that in any event, the defendant's negligence was the cause of the loss of the goods, rendering it liable for their value if it be held that they were there on exhibition under an agreement amounting to one of bailment for the mutual benefit of both plaintiff and defendant. A trial before the court without a jury resulted in findings and judgment against the defendant for the sum of $188, the value of so much of the goods as were stolen and not recovered. From this judgment the defendant has appealed.

Appellant is a corporation, and maintains in Seattle a museum for the exhibition of curios, works of art, etc. It is not a corporation maintaining a business for profit in a commercial sense. It is maintained by donations, membership fees, and admissions charged to others than its members. While it has curios, and works of art of its own on exhibition, many of its exhibits belong to others and are placed in its museum either as a mere loan, or in pursuance of agreements with owners mutually beneficial to it and such owners. Respondent is a lapidary and manufacturer of jewelry maintaining a place of business in Seattle. In February, 1912, a Mr. Charbeneau, one of the curators of appellant, visited respondent at his place of business, and invited him to put some of his goods on exhibition in the rooms of appellant. Respondent's own version of this visit and the placing of his goods on exhibition is as follows:

'He came in there one afternoon and called on me and said that they were going to open up the museum in a day or two, and he said that they wanted to make the best showing possible down there, and he would like to have me put an exhibit down there. He said that they had a show case that they did not have anything to put in, and that they would like to have me put some good stones in it and make an exhibit something like I had at the A. Y. P. Fair and the Chamber of Commerce. I told him I did not have much time to make an exhibit in two or three days, and that I would have to take my stock if I did it. He said that they wanted to make a good showing, and he said if I would bring down some stuff, they would give me the show case and see that the goods were well taken care of, and that he would be glad to have me make an exhibit. I told him that I did not have the time, and he insisted on doing it. I said, 'What would there be in it; suppose I did?' He said, 'We can do a lot of advertising for you. You can have cards and put a sign on the place. It is something unusual. We don't usually permit that, and you can make a good many customers that way.' 'Bring the stuff and make a showing.' I took Mr. Lempke and introduced him to Mr. Charbeneau. Mr. Lempke was cutting cameos at my place at the same time, and Lempke liked that, and he wanted me to make an exhibit of cameos at the time I had the exhibit; and he wanted us to make an exhibit together; and either that day or the next I went to Mr. Berg [appellant's agent in charge of exhibits] and asked him to show me the case that he had, and Mr. Berg took me down and showed me the case. I told him that it was necessary to have the best light possible. He said that that was the best location that he had in the room, and that he would give it to me for that occasion; and we got up the stuff and took it down there and made the exhibit. I took the boys down there to help me out in the afternoon. The case hadn't been dressed, or anything. I took Albert Wilson and Lempke. They went down with me. We went to work and decorated the goods, and Albert Wilson arranged the stuff, and there wasn't any way to lock up the case that I could see. I asked Mr. Berg if I could put a padlock on the cases. He said the cases were all locked with wire at the bottoms that places the two backs of the cases together and put wires around the legs, twisted around, and he said the show cases were borrowed and he would rather not mar them up in any way. He said they were perfectly secure that way, wired, and that there was a watchman there all the time, and there would be no danger. * * * I asked him, when they went down there, 'What is in it?' and he says, 'You can put your cards down there. It is positively against our rules, but if you make a good exhibit I will let you put your cards there.' * * * I put a box of them on the counter. * * * I went down there and asked Mr. Berg to show me the case we were to put the exhibit in, and he took me down and showed it to me, and I told him that one of the main things was to have a good light, to show up the stones. * * * He told me I could take it where I liked best.'

The case in which the respondent's goods were placed, as well as those of others, had doors at the back as the only means of entrance. This case and another similar one were placed back to back so the doors could not be opened nor the cases entered without separating them. The legs of the cases were then securely wired together. Respondent testified, touching the matter, as follows:

'That was Mr. Berg's way of fastening all the cases, and he got us the wire and pliers and put it together that way. I wanted to put a padlock on, and I took a lock up there to put on. I have got it in my pocket, and Mr. Berg didn't want the cases marred; he would not let me. I told him it wasn't a very secure way of fastening. He said there was a watchman there, and it was perfectly safe.'

Other evidence, we think, shows that this method of securing the respondent's case against entrance was as effectual as the locking of it by a padlock in the manner suggested by appellant would have been, and made it fully as difficult of entry by one evilly disposed. In any event, it is apparent that respondent knew at the time that the case containing his goods was to be, and was, in fact, so secured. Respondent's exhibit consisted of articles of moderate value, no one of which exceeded $6 in value, as indicated by his complaint, being rings, brooches, and tie pins containing stone sets, and also some cut stones separately. It seems to have been the principal purpose of the exhibit to show Washington state gems and their adaptive use in the manufacture of jewelry. No list of the articles placed there by respondent was furnished to appellant, nor was any receipt given by appellant to respondent therefor. On this subject, respondent testified as follows:

'Q. When you placed that exhibit down there did you give Mr. Berg a list of the articles in there? A. He never asked for any. Q. Did you give him one? A. No, sir. Q. Did he ever give you a receipt for anything you placed in there? A. No. He gave me a guaranty that the stuff would be safe.'

Thereafter respondent visited the museum and saw his goods several times prior to the theft. His goods were placed there without any agreement as to their remaining any particular time. It is plain from the evidence that he was free to remove them at any time he desired. On August 4, 1912, about six months after placing the goods on exhibition, some $200 worth of them were stolen from the case in which they were exhibited. This was accomplished by the removal of the wire fastenings on the legs of the cases, and pushing them apart on one end so the doors could be opened. Arthur E. Hall, who was in charge of the museum for appellant on that day, testified as to what then occurred as follows:

'On this particular afternoon, I kept watch over the museum as much as possible. * * * I noticed two young fellows coming out of the front gallery. They looked suspicious, and I followed them out on the street. I saw them go up the street, those I was watching, and I went back downstairs and when I got back downstairs I saw that something was wrong with the cases. I looked up and I could see at a glance that articles were gone. I did not know how many were gone. I came back upstairs and informed the stenographer that was there that I was going down the street to try to follow those boys. I was unsuccessful, and I brought a policeman back with me--I believe Mr. Platt was there at the time, and I explained it to him--and the police said the best thing to do is to go down and see Mr. Tennant, I believe, the head of the detectives.'

This apparently, is all the information that appellant's officers or servants had as to the removal of respondent's goods by theft prior to their actual taking. It is also substantially all of the information the record furnishes us as to the degree of care or want of care exercised by appellant over respondent's goods up till the time they were actually stolen. There is considerable evidence in the record concerning the efforts of appellant and the police looking to the recovery of the respondent's goods after they were stolen, but we see nothing in this evidence that points to negligence on the part of appellant. Some complaint is made that ...