Haidinger-Hayes, Inc. v. Marvin Hime & Co.

• Decision Date: 25 July 1962
• Docket Number: HAIDINGER-HAYE,INC
• Citation: 206 Cal.App.2d 46,23 Cal.Rptr. 455
• Parties: , a California corporation, etc., et al., Plaintiffs and Appellants, v. MARVIN HIME AND COMPANY, Inc., et al., Defendants and Respondents. Civ. 25895.
• Court: California Court of Appeals Court of Appeals

Page 455

23 Cal.Rptr. 455

206 Cal.App.2d 46

HAIDINGER-HAYES, INC., a California corporation, etc., et al., Plaintiffs and Appellants, v. MARVIN HIME AND COMPANY, Inc., et al., Defendants and Respondents.

Civ. 25895.

District Court of Appeal, Second District, Division 2, California.

July 25, 1962.

John M. Podlech, Pasadena, for appellants.

Bert W. Levit, San Francisco, Herbert Z. Ehrmann, Los Angeles, Long & Levit, San Francisco, for respondents.

FOX, Presiding Justice.

This is an action for breach of bailment alleged to have resulted from a failure on the part of defendant Marvin Hime and Company, Inc. to return to the plaintiffs' assured certain articles of jewelry consigned to defendant.

Plaintiff Haidinger-Hayes, Inc. is a California corporation duly authorized as a surplus line broker. Pursuant to an agreement between this plaintiff and certain underwriters at Lloyd's of London, plaintiff was authorized to write and issue policies of insurance on behalf of these underwriters to adjust losses and to handle all claims and subrogation matters under such policies. Haidinger-Hayes, acting on behalf of these underwriters, wrote and issued to Akim Riskin policy number LC 55747 effective November 4, 1957, which policy contained a provision insuring Riskin, a jeweler, against loss by robbery of watches, broaches, bracelets and other jewelry consigned by Riskin to others in the sum of $7,500.00.

Plaintiff Pacific National Fire Insurance Company is a California corporation engaged in the business of writing and issuing policies of insurance. Effective September 15, 1967, this plaintiff wrote and issued to Riskin policy number JB 273100 containing substantially the same provisions as the above mentioned policy. This policy was in the sum of $2,500.00.

Defendant, Marvin Hime and Company, Inc., is a California corporation engaged in the jewelry business. On April 4, 1957, Riskin consigned to defendant a certain platinum broach and received a 'Receipt of Consigned Merchandise' (Exhibit A). On December 30, 1957, a certain wrist watch was similarly consigned by Riskin to defendant and he received a similar receipt (Exhibit B) and on January 24, 1958, a certain bracelet was also consigned upon a like receipt (Exhibit C).

On May 1, 1958, while said articles of jewelry were still in defendant's possession at its place of business, these articles were stolen in an armed robbery. It is admitted by the parties and appears clear in the record that the loss of these articles was neither caused nor contributed to in any manner by the willful act, negligence or fault of defendant. Thereafter, Riskin made a demand on defendant for the return of this jewelry but due to defendant's inability to do so because of the robbery, these articles were never returned to Riskin. Riskin then made a claim for the loss of these articles against the plaintiffs who satisfied this claim as follows: The underwriters of Lloyd's of London, through their agent, plaintiff Haidinger-Hayes, paid to Riskin the sum of $6,127.99 and plaintiff Pacific paid the sum of $2,042.66 to Riskin. Riskin died before this action was brought to trial.

The plaintiffs brought this action against defendant on the theory that the aforementioned 'receipts of consignment' constituted 'special contracts' which had the effect of increasing defendant's duty as a bailee. Plaintiffs argued that defendant had an absolute duty to return the consigned items and that its failure to do so subjected it to liability irrespective of the fact that defendant had, at all times, exercised reasonable care in dealing with the jewelry. The trial court entered a judgment for defendant from which plaintiffs appeal.

These alleged contracts are in the form of receipts which, at the top, state 'Receipt of Consigned Merchandise.' The instruments then described the particular article of jewelry which was therein consigned. At the bottom of these instruments, the documents stated: 'I agree not to sell or offer for sale, exchange or barter, said above described merchandise unless written permission or bill of sale is given by Akim Riskin, consignor, but take same only for the purpose of inspection; for the purpose of modeling in wax; to determine the fitness in prepared mountings, for the purpose of appraisal and for the purpose of matching with other stones. The value of the merchandise above indicated is to determine the amount of insurance to be carried, or security or deposit to be given by the consignee.' All three of the receipts (Exhibits A, B and C) contain the above provision. There is, however, a difference in the remaining printed portions of the receipts. Exhibit A states: 'The above described merchandise is to be returned within ___ days from the date hereof, or sooner upon demand at any time. I have read, understood and agree to the foregoing.' Exhibits B and C state: 'I do unconditionally agree to return the above described merchandise in good condition within ___ days from the date hereof, or sooner upon demand at any time. I have read, understood and agree to the foregoing.' All three receipts were signed by an authorized agent of defendant.

Plaintiffs' basic contentions on this appeal are: certain findings of fact are unsupported by the evidence and the trial court erred in admitting parol evidence.

The general rule when findings are attacked on the ground that the evidence is insufficient to support them is: 'When there is substantial evidence or any inference to be drawn from the evidence to support the findings of the trial court, an appellate court will not make determinations of factual issues contrary to those made by the trier of fact. [Citations.]' (Smith v. Bull, 50 Cal.2d 294, 306, 325 P.2d 463, 471; Ambriz v. Petrolane Ltd., 49 Cal.2d 470, 477, 319 P.2d 1.) 'In reviewing the evidence, all conflicts must be resolved in favor of the questioned findings and all reasonable inferences indulged in their support.' (Butler v. Nepple, 54 Cal.2d 589, 597, 6 Cal.Rptr. 767, 771, 354 P.2d 239, 243.)

We, therefore, must determine whether or not there was substantial evidence to support that attacked findings. However, previous to this, we must determine the duty that a bailee has under ordinary circumstances. This duty was set out cogently in Travelers Fire Ins. Co. v. Brock & Co., 30 Cal.App.2d 112, p. 114, 85 P.2d 905, p. 906: 'Where a bailment is for mutual benefit the bailee in the absence of a special contract is held to the exercise of ordinary care in relation to the subject-matter of the bailment and is responsible for loss or injury resulting from his failure to use ordinary care. He is not an insurer of the chattel entrusted to him and is not liable for loss resulting from robbery, burglary, or theft. [Citation.]' (Emphasis added.) Plaintiffs agree with this but assert that the receipts are in the nature of special contracts. We must then determine if the 'receipts' constitute special contracts.

The attacked findings are: '10. Said Exhibits 'A', 'B' and 'C' were intended by Riskin and defendant to be receipts only, and neither Riskin nor defendant at any time intended or agreed that the printed provisions of any of said receipts were to be binding on defendant.

'11. The provisions of said receipts are ambiguous, and there was at no time any agreement between Riskin and defendant with respect to any of said articles of jewelry, in said receipts or otherwise, whereby defendant agreed unconditionally to return them to Riskin or to compensate Riskin for the value thereof, whereby defendant assumed liability for their loss without fault on the part of defendant, whereby defendant became an insurer thereof, or whereby defendant agreed to insure them, the only agreement between Riskin and defendant being that defendant would exercise ordinary care with respect to said articles of jewelry. * * *

'13. Thereafter, Riskin made demand on defendant for the return of said articles of jewelry, but owing to defendant's inability to do so as a result of the aforesaid robbery, defendant failed to return said articles of jewelry to Riskin. Said failure by defendant to return said articles of jewelry to Riskin did not constitute a breach of any contract or agreement between defendant and Riskin, and defendant had sufficient excuse for said failure. * * *

'15. Neither the equities of said Underwriters, acting through their agent Haidinger-Hayes, Inc. nor the equities of plaintiff Pacific National Fire Insurance Company were or are superior to or even equal to the equities of defendant, and said Underwriters and the Pacific National Fire Insurance Company were not and are not subrogated to any right of recovery Riskin may have had against defendant with respect to the loss of said articles of jewelry.'

Upon the findings in toto, the trial court made the following conclusions of law, inter alia:

'1. Defendant was a bailee of the consigned articles...