Collins v. Boeing Co., 573--41110--I

• Decision Date: 13 April 1971
• Docket Number: No. 573--41110--I,573--41110--I
• Citation: 483 P.2d 1282,4 Wn.App. 705
• Court: Washington Court of Appeals
• Parties: , 46 A.L.R.3d 1294 Gerald L. COLLINS, Appellant, v. The BOEING COMPANY, Respondent.

Page 705

4 Wn.App. 705

483 P.2d 1282, 46 A.L.R.3d 1294

Gerald L. COLLINS, Appellant, v. The BOEING COMPANY, Respondent.

No. 573--41110--I.

Court of Appeals of Washington, Division 1, Panel One.

April 13, 1971.

Sullivan, Guterson, Rindal & Rousso, Louis Rousso, Seattle, for appellant.

J. David Andrews, H. Raymond Cairncross, Bruce Michael Cross, Perkins, Coie, Stone, Olsen & Williams, Seattle, fot respondent.

HOROWITZ, Chief Judge.

Plaintiff Collins sued defendant, the Boeing Company, for the value of tools and a toolbox, alleging that they were lost because of defendant's negligence. The court below entered findings, conclusions and judgment for the defendant. Plaintiff appeals.

There is evidence to support the following statement of the case. Defendant employed plaintiff in November 1965 as a woodworker-toolmaker. In plaintiff's craft, workers traditionally provide their own hand tools. Prior to assuming his duties, defendant supplied plaintiff with a written list of hand tools to be provided by plaintiff at his own expense in order to perform his own work, and informed him that employees are responsible for the care and safety of their own tools and that defendant would not be liable for the loss of such tools or toolboxes. Many additional tools were available to the plaintiff in the regular tool shop maintained by the defendant. Nevertheless, plaintiff thereafter purchased and used on the job more tools than defendant required of him in his progress from his various job levels.

Plaintiff's employment required him to perform his duties within the defendant's plant. Internally, in the protection of its own interests, defendant maintains a 24-hour plant surveillance by numerous guards who go throughout the plant on both scheduled and unscheduled patrols. At the perimeters, both pedestrians and vehicles must pass through gates at which guards are stationed 24 hours a day, 7 days a week. If a loss occurs at the plant, it is investigated by defendant's security division. In numerous instances defendant, through its security division, has been successful in recovering and returning stolen property, both of the employees and of the defendant. Employees found to have stolen property are discharged. The court found that the security system maintained by the defendant was reasonable, efficient and adequate.

Plaintiff is one of about 35,000 Boeing employees in the Seattle area who provide their own tools and toolboxes. An empty toolbox weighs about 10 to 12 pounds, and plaintiff's toolbox and tools weighed about 80 pounds. How much additional weight was added by additional tools purchased is not in evidence. Defendant provides no receptacle for the tools and toolboxes, and there is no provision for chaining toolboxes to the workbench to prevent toolboxes from being carried away or stolen. The toolbox is of the locking type and plaintiff had the only keys to his own box and only he knew its contents. However, defendant's supervisors periodically require employees to undergo toolbox inspections in order to check the presence of Boeing tools, and the toolboxes are required to be marked for identification purposes with a Boeing seal. At the conclusion of their working day when they leave the plant, employees may either take their tools and toolboxes with them, or they may leave the tools and toolboxes on or near their workbenches in the plant. Employees generally leave their toolboxes at the plant at the conclusion of their working day to serve their own convenience. If they take their toolboxes with them, permission so to do has to be obtained from their immediate supervisor and the toolbox has to be opened and checked prior to leaving. Hence employees' exit from the plant means delay. Furthermore, in a number of instances in order to reach their cars employees would have to carry their toolboxes as much as several blocks from their workbenches through the company toolroom and company gates. After exit from the plant, reentry can take place after proper identification. These exit and ingress requirements are part of the 24-hour a day security arrangements maintained by the defendant as above described.

There is no evidence that plaintiff otherwise delivered custody or possession of his toolbox containing his tools to the defendant, or that the defendant took their custody, control or possession. The basic reason for the plaintiff leaving his toolbox in the plant was to serve his own convenience. There was some evidence that by doing so defendant was incidentally benefited through reduction of exit or ingress delays and possible speedup in work by reason of additional tools supplied by the plaintiff. However the evidence showed that these incidental benefits were not requested by the defendant and were the unavoidable consequences of serving plaintiff's convenience. There is no evidence that the defendant ever departed from its policy of nonliability except in those cases in which it took actual physical control of the tools. The plaintiff and other employees were aware of the defendant's policy, but it was only after plaintiff's loss of his toolbox that the union, of which plaintiff is a member, undertook collective bargaining procedures to change defendant's policy. No change, however, was agreed upon.

Except for knowledge of the collective bargaining proceedings occurring subsequently, plaintiff knew all or substantially all the facts above recited on February 18, 1967 when he completed his work shift at 3:30 p.m. He then placed his tools in his toolbox, locked the box with his key, retained possession of the key, and then left the toolbox on top of his workbench in accordance with his prior practice and the practice of his fellow employees. Plaintiff then checked out of the plant's guarded gates. Plaintiff returned to work on the morning of February 19, when he was readmitted to the plant. There had been no working shift between the time plaintiff left the plant on February 18 and the time he returned. When he returned he found his toolbox containing his tools gone and it was never found. There is no claim nor evidence that the defendant itself ever appropriated plaintiff's toolbox containing his tools.

Plaintiff makes three assignments of error. Two are directed to the sufficiency of the evidence to support portions of two findings. We find the evidence and reasonable inferences therefrom sufficient so that the findings are binding upon us. Thorndike v. Hesperian Orchards, Inc., 54 Wash.2d 570, 343 P.2d 183 (1959). The third assignment raises the question of the sufficiency of the findings to support the conclusions.

The court concluded from the foregoing facts that with respect to plaintiff's toolbox containing his tools, there was no bailment so that defendant owed plaintiff no duty to prevent their theft. This conclusion was predicated upon the subordinate conclusions that there were neither change of possession of the subject matter from the plaintiff to the defendant, nor acquisition and acceptance of exclusive possession and control by the defendant. Furthermore, the court concluded that the defendant's security precautions were reasonable and efficient and the defendant was in no way negligent. It may be that the conclusions above described are also in large part factual findings binding upon us, making further discussion largely unnecessary. See Ferree v. Doric Co., 62 Wash.2d 561, 383 P.2d 900 (1963); McCutcheon v. Brownfield, 2 Wash.App. 348, 356, 467 P.2d 868 (1970). See Gray v. Fuller, 85 Wash. 13, 147 P. 402 (1915). However, we believe that the plaintiff's contentions and the general importance of the issues raised require that the principles involved be further explored.

We hold that the judgment below should be affirmed because as between the parties with respect to the plaintiff's own toolbox and tools, defendant owed plaintiff no duty to prevent their theft by third persons, either by virtue of contract principles, I.e., bailment, or tort principles. If, however, a duty of care existed, the trial court had the right to find that the defendant discharged the duty by its security measures.

Plaintiff first contends that the defendant is under a contractual duty to protect his toolbox containing his tools against theft by third persons on contract principles predicated upon the existence of a bailment relationship between the parties. Under the evidence here, we find no bailment. Except in the so-called constructive or involuntary bailment cases in which a duty of care is recognized, E.g., possession taken by a finder, or possession taken by mistake, or because involuntarily thrust upon another, bailment normally is a consensual transaction. As stated in R. Brown, The Law of Personal Property § 91, at 399 (2d ed.1955):

The bailor intentionally delivers possession of his goods to the bailee and the latter accepts the same with a real or a presumed knowledge of the responsibility entailed thereby.

See also R. Brown, The Law of Personal Property §§ 73, 11, 15 (2d ed.1955); D. A. Schulte, Inc. v. North Terminal Garage Co., 291 Mass. 251, 197 N.E. 16 (1935); 8 Am.Jur.2d Bailments, §§ 55 & 57 (1963); Annot., 1 A.L.R. 394, § 1(a) (1919). See also Ramsden v. Grimshaw, 23 Wash.2d 864, 162 P.2d 901 (1945). Resort to the concept of constructive or involuntary bailment on which to base a duty of care is unnecessary here. There is sufficient evidence from which the court could find that the mutual intention of the parties, manifested by their conduct, prevented a consensual bailment from arising. We know of no public policy that requires us to substitute a constructive or involuntary bailment responsibility which the parties by mutual manifest intention have rejected.

Before a consensual bailment of personal property may be said to arise, there must be a change of possession and an assumption or acceptance of possession by the person claimed to be a bailee. Theobald v. Satterthwaite,30...