Fuchs v. Harbor Island Spa, Inc.

• Decision Date: 05 January 1970
• Docket Number: No. 28118.,28118.
• Parties: Samuel FUCHS, Plaintiff-Appellee, v. HARBOR ISLAND SPA, INC., Defendant-Appellant. FEDERAL INSURANCE COMPANY, Plaintiff-Appellee, v. HARBOR ISLAND SPA, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

420 F.2d 1100 (1970)

Samuel FUCHS, Plaintiff-Appellee, v. HARBOR ISLAND SPA, INC., Defendant-Appellant.

FEDERAL INSURANCE COMPANY, Plaintiff-Appellee, v. HARBOR ISLAND SPA, INC., Defendant-Appellant.

No. 28118.

United States Court of Appeals Fifth Circuit.

January 5, 1970.

Peter T. Fay, Larry S. Stewart, Frates, Fay, Floyd & Pearson, Miami, Fla., for appellant.

Harold L. Ward, Miami, Fla., for Samuel Fuchs, Fowler, White, Gillen, Humkey & Trenam, Miami, Fla., of counsel.

Harry L. Durant, David S. Batcheller, Miami, Fla., for Federal Ins. Co., Smathers & Thompson, Miami, Fla., of counsel.

Before JOHN R. BROWN, Chief Judge, TUTTLE and MORGAN, Circuit Judges.

TUTTLE, Circuit Judge.

This is an appeal from a judgment in a jury waived suit for recovery of the value of jewelry which was stolen from the safety deposit boxes of the defendant hotel. At issue is the question whether a guest who complies strictly with the procedures set up by the hotel itself is denied recovery because neither the hotel nor the guest made an effort to comply strictly with the provisions of Florida Statute 509.111, F.S.A.¹ The question is complicated in this case by reason of the fact that, the hotel management, without regard to the provisions of the statute offered the use of the safety deposit boxes to the guests and by the further fact that, upon registering, the guest was presented with a registration card which read:

"Money, jewels, and other valuable packages must be deposited at the office to be kept in the safe, otherwise, the management will not be responsible for any loss."

The plaintiff below also contended that the hotel company could not rely upon the protection afforded by the statute because the required notice was not posted within view from the registration desk or anywhere else in the office, hall or lobby, despite a requirement to that effect as contained in Section 509.101 Fla.Stats., F.S.A.

There is ample evidence to support the following statement of the factual situation that brought about the judgment of the trial court.

The plaintiffs were paying guests at defendant's hotel on or about March 31, 1966. The registration card presented to each plaintiff, and used by them for registration purposes, bore a prominent notation, to wit: "Money, jewels and other valuable packages must be checked at the office to be kept in the safe, otherwise the management will not be responsible for any loss." The safe deposit boxes were built and maintained by the hotel in an alcove off the main lobby for the use of paying guests. A guest who desired the use of a safe deposit box was given a card at the registration desk by defendant's employee. The card form had space allotted only for (1) guest's name and address; (2) the dates; (3) the guest's room number; (4) signature specimens of those authorized access to the safe deposit box and the safe deposit box number. The guests, either at the registration desk or in the "safe deposit box room" would deposit items in the safe deposit box and return it to the hotel employee for safe keeping. Two keys were required to open the box. The guest kept one key, the hotel kept the other. Thereafter, when the guest desired access to the box, he entered the "safe deposit box room" which was adjacent to the registration desk, produced his key and requested the box from the attendant. Each plaintiff requested the use of a safe deposit box and each received one in the described manner.

The defendant did not give actual notice to any plaintiff of the requirements of the Florida Statute as contained in Section 509.111, footnote 1, supra, nor that its procedure for depositing valuables was different than that prescribed by the statute in order to make the defendant liable for a loss of deposited property occasioned other than by the hotel's own neglience. At no time did the defendant ever advise any plaintiff of any procedure for depositing money or jewelry other than the use of safe deposit boxes, nor was any other procedure routinely used. Upon handing the safe deposit box and its contents to the defendant for safe keeping, no receipt was offered by the defendant to the guest for his signature and the defendant did not inquire about the value of the contents. Upon handing the safe deposit box and its contents to the hotel personnel for safe keeping, no plaintiff either asked for a receipt or advised defendant of the value of the contents. Under its safe keeping procedure, defendant had no knowledge of the nature or value of property deposited or withdrawn by plaintiffs. Defendant made no attempt to ascertain the nature of the value of the property at any time.

The posted notice of the provisions of Florida Statute § 509.111, F.S.A. was a form furnished by the Florida Hotel and Restaurant Commission. The notice set out section 509.111 in abridged form. A copy was posted inside a closet in each guest room, and on one wall of the "safe deposit box room." This was a separate room from the lobby of the hotel.

A robbery occurred at the hotel during early morning hours of March 31, 1966, during which the safe deposit boxes broken into included those safe deposit boxes which the plaintiffs were using. The contents of the plaintiffs' safe deposit boxes were taken by the thieves and have not been recovered or returned.

There was not, as there could not be, of course, under the circumstances, much dispute as to the contents of the boxes. Judgment was entered for various amounts in favor of the several plaintiffs. The trial court entered judgments in the amounts of $65,257 and $151,261.72 respectively in favor of the plaintiff Fuchs and the Federal Insurance Company as subrogee of other guests from whom it had received assignments of their claims upon settling the claims with the insureds.

The recitation of facts, all of which were stipulated, presents such a clear case crying out for affirmance of the judgment of the trial court on the equities that we are not surprised to learn that the highest Florida court to which we can look to determine "the way in which the Erie winds blows," Delduca v. United States Fidelity & Guaranty Co., (5 Cir., 1966) 357 F.2d 204, 206 supports this appealing method of disposition of the case. Just as did the trial court, we place our judgment of affirmance on the case of Safety Harbour Spa, Inc. v. High, (Fla.App.1962) 137 So.2d 248, for, as all know, in this diversity action we must seek to determine...