D'Aloisio v. Morton's, Inc.

• Decision Date: 14 March 1961
• Citation: 342 Mass. 231,172 N.E.2d 819
• Parties: Annina D'ALOISIO v. MORTON'S, INC. and Halmor, Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 819

172 N.E.2d 819

342 Mass. 231

Annina D'ALOISIO v. MORTON'S, INC. and Halmor, Inc.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 8, 1960.

Decided March 14, 1961.

Samuel A. Valenti, Boston, for plaintiff.

Edward O. Proctor, Jr., Boston, for defendants.

Before WILKINS, C. J., and SPALDING, WILLIAMS, CUTTER, and KIRK, JJ.

CUTTER, Justice.

This is an action of tort or contract. The evidence appearing in the report to the Appellate Division is stated in its aspect most favorable to the plaintiff. On May 15, 1958, the plaintiff, who 'speaks and understands little or no English,' accompanied by her daughter, a nineteen year old college student who acted for her, left her mink coat for storage and repair with Halmor, Inc. (Halmor), a wholly owned subsidiary of Morton's Inc. She received a 'storage receipt and contract' on which appeared the name 'Morton's,' and which limited the bailee's liability ² to $300, the coat's value as declared by the plaintiff. The plaintiff could have been protected up to a higher maximum by paying a storage charge equal to two per cent of whatever valuation she chose to place on the coat. The daughter translated at least some of the conversation with Wise, the representative of Halmor, to her mother. The daughter knew what a minimum charge was and that her mother 'by paying a larger charge * * * could have more insurance.' The plaintiff herself said hardly anything and did not understand that she could have insured the coat for a larger amount if she was willing to pay a higher charge, as her daughter failed to tell her.

'On the same day' on which the plaintiff's coat was left with Halmor, it 'was sent to the alteration shop * * * for the purpose of having the cuffs tacked. There is no evidence as to the whereabouts of * * * [the] coat after that time.'

In the autum of 1958, the 'plaintiff and her daughter * * * dropped into Halmor * * * and asked * * * [that] the coat' be sent to them. 'They were told that they would have it in about a week.' Later the daughter was informed that there had been 'difficulty in locating it. A thorough search was * * * made by both defendants, but * * * [the] coat could not be located.' The plaintiff was tendered $300, 'the claimed limit of liability, which [the] plaintiff refused.'

At the trial the judge found for the defendant Morton's on a count for conversion of the coat, and for the plaintiff against Halmor in the sum of $2,050 on count 2, a count for negligence, and on count 3, a count for conversion. The defendants filed requests for rulings, in essence (No. 1) that the plaintiff was bound by the contract, regardless of whether she read it, and by the limitation of liability therein, in the absence of fraud; (No. 2) that the document was a contract and not a cash receipt; and (No. 4) that there was no evidence supporting a finding for the plaintiff in excess of $300. Requests numbered 1 and 2 were denied as 'inapplicable to the facts found.' Request numbered 4 was denied.

The Appellate Division vacated the trial judge's findings for $2,505 on count 2 (negligence) and on count 3 (conversion) and ordered judgment for the plaintiff for $300 on count 2. The plaintiff appealed.

1. We consider first the judge's refusal of request numbered 2, in effect that the 'storage receipt and contract' is a contract as a matter of law. 'Where what is given to a plaintiff purports on its face to set forth the terms of a contract, the plaintiff, whether [s]he reads it or not, by accepting it assents to its terms, and is bound by any limitation of liability therein contained, in the absence of fraud,' of which here there was no evidence. See Kergald v. Armstrong Transfer Exp. Co., 330 Mass. 254, 255-256, 113 N.E.2d 53, where the relevant decisions are collected. See also Polonsky v. Union Fed. Sav. & Loan Ass'n, 334 Mass. 697, 701, 138 N.E.2d 115, 60 A.L.R.2d 702; Mustard v. Eastern Air Lines, Inc., 338 Mass. 674, 676-677, 156 N.E.2d 696. The plaintiff is bound regardless of her ability to read. See Cohen v. Santoianni, 330 Mass. 187, 193, 112 N.E.2d 267. In the Kergald case, it was also said that, where 'what is received is apparently a means of identification of the property bailed, rather than a complete contract, the bailor is not bound by a limitation upon the liability of the bailee unless it is actually known to the bailor.' [330 Mass. 254, 113 N.E.2d 54] A baggage check was there held to be within the category of 'means of identification' rather than a complete contract.

The 'storage receipt and contract' personally signed by the plaintiff was plainly so marked. Her signature appeared immediately below the words in legible capital letters 'I have read the reverse side hereof.' On the reverse side appeared the provisions already mentioned (see footnote 2). Above the figure of $300 inserted as the 'valuation by customer' on the front of the contract appeared the words 'liability not exceeding.' It could not properly have been ruled that this 'storage receipt and contract' was merely a 'means of identification.' Requested ruling numbered 2 should have been given.

The plaintiff is concluded by the representation of her by her daughter, notwithstanding any failure or inability of her daughter to interpret the conversation with Wise accurately and fully. See Commonwealth v. Vose, 157 Mass. 393, 394-395, 32 N.E. 355, 17 L.R.A. 813; Restatement 2d: Agency, § 14E. In the circumstances the plaintiff is also bound (see Hannon v. Hayes-Bickford Lunch Sys. Inc., 336 Mass. 268, 273, 145 N.E.2d 191) by her daughter's testimony as to her understanding. Request numbered 1 should also have been given.

2. The parties contracted with respect to an agreed valuation of the bailed article. The plaintiff could have obtained a higher limit of liability by paying a higher rate. The daughter's testimony about her understanding of the contract shows that she realized the possibility of a higher insurance 'by paying a larger charge.' In the circumstances, the limitation of liability in the storage receipt and contract is binding not only with respect to recovery on the contract of bailment but also with respect to recovery for ordinary negligence. This is the rule as to charges by carriers. See Bernard v. Adams Exp. Co., 205 Mass. 254, 258-261, 91 N.E. 325, 28 L.R.A.,N.S., 293; Johnson v. New York, N. H. & H. R. R., 217 Mass. 203, 207, 104 N.E. 445; McKinney v. Boston & Maine R. R., 217 Mass. 274, 275, 104 N.E. 446; Mustard v. Eastern Air Lines, Inc., 338 Mass. 674, 678, 156 N.E.2d 696; Restatement: Contracts, §§ 574, 575(2). See also Bigelow, Kennard & Co. Inc. v. City of Boston, 254 Mass. 53, 56-57, 149 N.E. 540, 41 A.L.R. 1355. Cf. Aradalou v. New York, N. H. & H. R. R., 225 Mass. 235, 238, 242, 114 N.E. 297; Henderson v. Canadian Pac. Ry., 258 Mass. 372, 376-377, 155 N.E. 1. The doctrine of these cases is equally applicable to warehousemen and other persons providing storage facilities. See G.L. c. 105, § 10; ³ Samelson v. Harper's Furs, Inc., 144 Conn. 368, 371-373, 131 A.2d 827; George v. Bekins Van & Storage Co., 33 Cal.2d 834, 845-848, 205 P.2d 1037; Prosser, Torts (2d ed.) § 55, p. 307; Williston, Contracts (Rev. ed.) § 1046; Corbin, Contracts, § 1472 (see also §§ 1068-1069). See also Page v. Ace Van & Storage Co., 87 Cal.App.2d 294, 297-299, 196 P.2d 816; Eckel v. Trencher Furs, Inc., 191 Misc. (N.Y.) 14, 15-16, 76 N.Y.S.2d 829; Harper & James, Torts, § 21.6, p. 1188, n. 14. Cf. Wainwright v. Massachusetts Storage Warehouse Co., 219 Mass. 247, 249-250, 106 N.E. 1001 (recovery permitted on oral contract of storage without consideration of later written agreement); Taccetta v. Chauncey Rice & Rogovin, Inc., D.C.S.D.N.Y., 75 F.Supp. 373, 374 (apparently based on language of receipt); Voyt v. Bekins Moving & Storage Co., 169 Or. 30, 47, 119 P.2d 586, 127 P.2d 360. It is generally recognized, however, that contractual limitations of liability do not protect a bailee or warehouseman against at least a wilful and intentional conversion for its own benefit. See Menuez v. Julius Kindermann & Sons, Inc., D.C.S.D.N.Y., 19 F.Supp. 7, 8; Glinsky v. Dunham & Reid, Inc., 230 App.Div. 470, 471-472, 245 N.Y.S. 359; Kaplan Products & Textiles, Inc. v. Chelsea Fireproof Storage Warehouse, Inc., 9 Misc.2d 273, 163 N.Y.S.2d 705; French v. Bekins Moving & Storage Co., 118 Colo. 424, 429, 195 P.2d 968 ('conversion must be by misfeasance' and not by negligence to avoid limitation clause); annotation 99 A.L.R. 266. See also Restatement: Contracts, § 575(1); Rappaport v. Storfer Bros. Inc., 2 Misc.2d 395, 396-397, 154 N.Y.S.2d 113.

3. We need not determine whether the evidence warranted a finding that Halmor was negligent or that (because it was acting as, or as agent for, a warehouseman) it had not satisfied the warehouseman's statutory burden of proof that it was not negligent, existing under G.L. c. 105, § 15. ⁴ This section provides that if a 'warehouseman * * * fails to deliver the goods in compliance with a demand * * * accompanied [by certain tenders], the burden shall be upon * * * [him] to establish the existence of a lawful excuse for such * * * failure.' See Rudy v. Quincy Market Cold Storage & Warehouse Co., 249 Mass. 492, 493-495, 144 N.E. 286. See also Denning Warehouse Co. v. Widener, 10 Cir., 172 F.2d 910, 13 A.L.R.2d 669, 912-913; George v. Bekins Van & Storage Co., 33 Cal.2d 834, 839-840, 205 P.2d 1037. Cf. Bellows v. Worcester Storage Co., 297 Mass. 188, 192-193, referring to the common law rule as to burden of proof of negligence or fault of a bailee; Hanna v. Shaw, 244 Mass. 57, 61, 138 N.E. 247; Sandler v. Commonwealth Station Co., 307 Mass. 470, 473, 30 N.E.2d 389, 131 A.L.R. 1170; National Dock & Storage Warehouse Co. v. United States, 1 Cir., 27 F.2d 4, 6-8; Castorina v. Rosen, 290 N.Y. 445, 447-448, 49 N.E.2d 521; Wigmore, Evidence (3d ed.) § 2508; McCormick, Evidence, § 309. Cf. also Cargill, Inc. v. Commodity Credit Corp., 2...