Gardner v. Jonathan Club

• Citation: 35 Cal.2d 343,217 P.2d 961
• Court: United States State Supreme Court (California)
• Decision Date: 05 May 1950
• Parties: GARDNER v. JONATHAN CLUB. L. A. 21327.

Page 961

217 P.2d 961

35 Cal.2d 343

GARDNER v. JONATHAN CLUB.

L. A. 21327.

Supreme Court of California, in Bank.

May 5, 1950.

Murchison & Myers, R. Bruce Murchison, John B. Myers and Claude B. Cumming, Los Angeles, for appellant.

Fulcher & Wynn, Gibson, Dunn & Crutcher, P. C. Sterry and C. G. Wynn, Los Angeles, for respondent.

TRAYNOR, Justice.

Plaintiff, as assignee of Lambert H. Polderman, brought this action to recover $5,500 allegedly contained in an envelope $5,500 allegedly contained in an envelope not returned on demand. Defendant moved for summary judgment for plaintiff in the amount of $250 on the ground that its liability was limited to that amount by Civil Code sections 1840, 1859, and 1860. ¹ The motion was granted and plaintiff appeals from the judgment entered thereon.

Plaintiff's assignor was a resident member of defendant club, which rents rooms to members and guests. Pursuant to Civil Code section 1860, defendant maintains a fireproof safe and has posted the prescribed notices. On June 18, 1947, Polderman delivered a sealed envelope (allegedly containing $5,500) to defendant's desk clerk with the request that it be placed in the safe. The envelope had printed on it the following:

'A Check 1781

This check to be signed when package is deposited.

In accepting this envelope and contents for safekeeping, we assume no liability other than that provided for in the Inn Keeper's Act of this state, which has limited our liability so that in no event can we be liable for more than the amount specified in said Act.

The employee accepting this envelope has no authority to accept same if the contents are valued at more than the amount specified in said Act.

The contents of this envelope do not exceed a value of $_ _.

Signature of Depositor _ _

Received by _ _ Date _ _ 19 _ _

Do Not Detach Until Package Is Called For Delivery only to owner after signature on Duplicate check 'B' is witnessed and compared.'

Polderman signed his name on the envelope, but did not indicate the value of its contents in the space designated for that purpose. The clerk took the envelope and detached and gave Polderman the 'B' check which provided:

'B Check 1781

This check to be signed only when package is called for in presence of the Clerk on duty.

Signature of Depositor _ _

Delivered by _ _ Date _ _ 19 _ _

Package will be delivered only to party originally depositing it, whose signature appears on duplicate check on package.'

On September 4, 1947, Polderman presented the 'B' check to defendant and requested the envelope, but defendant failed to return it to him. Polderman then assigned his claim to plaintiff for collection. Defendant's liability is controlled by the statutes governing innkeepers, for even the 'A' check signed by Polderman made that liability coextensive with that 'provided for in the Inn Keeper's Act of this state.'

'The issue to be determined by the trial court in consideration of a motion (for summary judgment) is whether or not (plaintiff) has presented any facts which give rise to a triable issue * * * and not to pass upon or determine the issue itself, that is, the true facts in the case.' Eagle Oil & Refining Co. v. Prentice, 19 Cal.2d 553, 555, 122 P.2d 264, 265; Walsh v. Walsh, 18 Cal.2d 439, 441, 116 P.2d 62; U. S. Fidelity & Guaranty Co. v. Sullivan, 93 Cal.App.2d 559, 209 P.2d 429. If the complaint alleges facts that present a triable issue, a summary judgment is improper.

Before the amendment of sections 1859 and 1860 to substantially their present form in 1895, an innkeeper, like a common carrier, was liable as an insurer for loss of or injury to the goods of his guests. Mateer v. Brown, 1 Cal. 221, 227, 52 Am.Dec. 303. Under the statutes as amended, however, his liability is that of a depositary for hire. To impose liability on him for loss of the property of his guests, the loss must be caused by his own negligence or dishonesty or that of his employees. If a bailor alleges and proves the deposit of property with the bailee, a demand therefor, and the failure of the bailee to redeliver, the burden of proof rests upon the bailee to explain his failure. George v. Bekins Van & Storage Co., 33 Cal.2d 834, 839-841, 205 P.2d 1037; U Drive & Tour, Ltd., v. System Auto Parks, Ltd., 28 Cal.App.Supp.2d 782, 784, 71 P.2d 354; Cussen v. Southern California Savings Bank, 133 Cal. 534, 537, 65 P. 1099, 85 Am.St.Rep. 221; Dieterle v. Bekin, 143 Cal. 683, 687, 77 P. 664. If he fails to prove that the loss did not result from the aforementioned causes, he is liable for that loss under sections 1859 and 1860, but his liability is limited to the specified amounts unless he has assumed a greater liability or has himself stolen the property. Since defendant is a corporation it can act only through its employees. By its motion for summary judgment for plaintiff for $250, defendant conceded that the loss resulted from the negligence or theft of its employees. Section 1860 limits its liability therefor unless it gave a receipt in writing for the contents of the envelope, and summary judgment for that amount was proper unless such a receipt was given.

It is contended, however, that if the loss resulted from theft by an employee, the $250 limitation is inapplicable, and plaintiff is therefore entitled to a trial on the issue of theft. We cannot agree. Section 1860 unequivocally limits liability for loss 'in any case' to $250; it does not except losses caused by employees' dishonesty. The same is true of the provision of section 1859 that 'in no case' shall liability exceed the specified amounts. Neither statute furnishes support for the contention that the limitation was not designed to apply to losses resulting from theft by an employee of the innkeeper.

The New York Court of Appeal has interpreted a similar statute as limiting liability in all cases, including that of theft by an employee, in which the property has been lost from the possession of the bailee:

'The Appellate Division has decided that (the statute) does not protect the defendant or limit its liability because the jewelry was stolen by an employee of the defendant, thereby limiting the effect of the section to cases where the property of the guest placed with a hotel for safe-keeping in a safe is stolen by some one not an employee of the hotel. We cannot agree with that construction of the section. There is nothing in the wording of the section which suggests such a limitation of its meaning. * * * The purpose of the section is to protect the hotel from an undisclosed * * * liability. * * *

During the many years that a statute has been in existence in this state limiting the liability of a hotel to a guest, no case has been decided by this court indicating that such limited liability did not exist in case the property of a guest deposited for safe-keeping was stolen from a hotel by an employee thereof. Such a holding by this court would nullify the purpose of the statute and be in conflict with the spirt and intent thereof.

'We do not hold that section 200 limits the liability of a hotel of $250 where the value of the articles left for safe-keeping in a safe is not disclosed, and the articles are stolen by the hotel keeper. Such a theft would be by the hotel keeper from the guest and not a theft from the hotel keeper.' Millhiser v. Beau Site Co., 251 N.Y. 290, 294-295, 167 N.E. 447, 448; Goodwin v. Georgian Hotel Co., 197 Wash. 173, 184-186, 84 P.2d 681, 119 A.L.R. 788.

Sections 1859 and 1860 are designed to relieve the innkeeper from his insurer's responsibility, 'to protect (him) from an undisclosed liability' for the deposited property. They are as applicable to losses resulting from theft by employees as to losses from negligence. Theft by an employee is often the cause of such losses, see, Millhiser v. Beau Site Co., 251 N.Y. 290, 294, 167 N.E. 447; Muehlebach v. Paso Robles Spring Hotel, 65 Cal.App. 634, 640, 225 P. 19 and cannot be excluded from the operation of sections 1859 and 1860 without vitiating their terms and purpose.

Muehlebach v. Paso Robles Spring Hotel, 65 Cal.App. 634, 225 P. 19, does not sustain a contrary conclusion. It was there contended in support of a judgment for the defendant innkeeper that section 1860 imposed no liability for the loss of goods resulting from theft by the innkeeper's employee. The court reversed the judgment, holding that section 1860 did not exempt the innkeeper from all liability for loss caused by an employee's dishonesty. That case decided only that the statutory imposition of liability was applicable to theft by an employee, not that the limitation thereof was not applicable. The court expressly stated that it did not decide the applicability of the $250 limitation. 65 Cal.App. 634, 648, 225 P. 19, 24. It is clear that the innkeeper is liable for loss caused by his employee's dishonesty, but that his liability is limited by the terms of section 1859 and 1860. In view of defendant's admission of liability by its motion for summary judgment, it is immaterial whether the loss resulted from theft or negligence.

It bears emphasis that section 1860 does not guarantee a minimum recovery of $250 in every case in which property deposited in a hotel safe is lost. Section 1840 limits the liability of the depositary to the amount it 'is informed by the depositor, or has reason to suppose, the thing deposited to be worth.' To recover judgment for $250, a plaintiff must prove that the deposited property was worth that much and that the innkeeper was informed or had reason to know of that fact. In this case, however, the question does not arise because defendant waived the requirement of that proof by moving for the summary judgment.

Plaintiff contends that the 'B' check is a receipt within the meaning of section 1860 and that therefore there is no limitation on defendant's liability. We have concluded that the 'B' check was not a receipt within the meaning of section 1860 for the contents...