Hischemoeller v. National Ice & Cold Storage Co. of Cal.
| Decision Date | 02 March 1956 |
| Citation | 46 Cal.2d 318,294 P.2d 433 |
| Court | California Supreme Court |
| Parties | Herbert HISCHEMOELLER, doing business under the name and style of Hismoco (American Co.), a fictitious firm name, Plaintiff and Respondent, v. NATIONAL ICE AND COLD STORAGE COMPANY OF CALIFORNIA (a Corporation), Defendant and Appellant. L. A. 23816. |
James D. Garibaldi, Los Angeles, Gavin, McNab, Schmulowitz, Sommer & Wyman, Nat Schmulowitz, Peter S. Sommer and Ronald P. Klein, San Francisco, for appellant.
McBain & Morgan, Newell & Chester, Newell, Chester & Gibson, and Robert M. Newell, Los Angeles, for respondent.
Plaintiff sues defendant warehouseman for damages resulting from negligence in the storage of certain dried chili peppers. The case was tried before a jury and verdict rendered for plaintiff in the sum of $23,112.30. Defendant has appealed.
Defendant is a public warehouseman and as such a public utility. (Pub.Util.Code, §§ 216, 239.) It is also governed by the Food Warehousemen Act (Pub.Util.Code, §§ 2501-2574), which defines food warehousemen as public utilities (§§ 2502, 2507). Section 2551 requires the filing with the Public Utilities Commission (formerly Railroad Commission) of Section 2552: 'Every food warehouseman doing business in the State shall print and keep open to public inspection at each building, structure, warehouse, elevator, or plant maintained by him in this State copies of the schedules filed with the commission pursuant to Section 2551.'
Defendant has filed, and kept open to public inspection as required schedules covering its rates and other charges. One of them is Cold Storage Warehouse Tariff No. 12 C.R.C. No. 87, which contains a rule 70-B reading as follows: 'Limited Liability. For the purpose of fixing storage rates and the maximum limit of the warehousemen's liability, the value of merchandise stored shall be conclusively deemed not to exceed, per ton of 2000 lbs.
for potatoes and onions ........... $ 50.00
for all other vegetables and for
fruits and fish 1 ............ 100.00
for frozen packaged processed
foods ............................ 200.00
for butter, eggs and cheese ........ 500.00
for all other merchandise .......... 200.00
unless the person to whom the warehouse receipt is issuable declares, when such merchandise is offered for storage, that it is of greater value and such greater value is noted on the warehouse receipt by the warehouseman, in which case the value shall be conclusively presumed not to exceed that so declared. The specified traiff storage rates are minimum rates which apply where no value is so declared and noted, or where, if declared, it does not exceed the otherwise presumed limit; and where such declared value exceeds such otherwise presumed limit, an additional rate will be added and charged equivalent to one-quarter of one per cent of the amount of such excess for each month or part thereof. The warehouseman's liability is limited to and shall in no event exceed whichever is smaller of the actual value, or, as the case may be, such presumed or declared limit of value in respect of which the storage rate is so fixed and payable. Such presumed or declared value as an agreed limit, and likewise such limitation of liability, applies separately and proportionately on a weight basis to each part of the stored merchandise; and liability, if any, for any partial loss of or injury to any part thereof shall not exceed that portion of such limited liability with respect to such part, proportionate to the actual loss of or damage thereto.
'The option of declaring such increased value rests with the customer and the warehouseman may not insist upon it.' Cold Storage Warehouse Tariff No. 2-D, C.R.C. No. 86, also on file, provided a minimum storage rate of 25 cents per hundred pounds of chilies for the first month and 12 1/2 cents per month for each succeeding month, provided same were in lots of 10,000 pounds or over (as was the case here).
The peppers were originally stored in 1949 by Gonzales and Blanco, who declared no value, and then received two 'Memorandum Acknowledgments' on which defendant acknowledged receipt from them of the peppers 'To be placed in Cold Storage Subject To Limited Liability and other Terms and Conditions as Shown By Warehouse Receipt and/or Rules and Regulations on File with the Railroad Commission of the State of California.' It is a fair inference that conforming warehouse receipt was issued to Gonzales and Blanco. In January 1950 plaintiff, who had had considerable experience with certain types of warehousing, arranged for Security-First National Bank of Los Angeles to finance the deal and purchased the chilies, still in warehouse, from Gonzales and Blanco. Upon authorization from the sellers defendant issued to plaintiff two documents entitled 'Transfer Memorandum,' which bore these words at the bottom: 'This Merchandise is Stored Subject to Limited Liability and other Terms and Conditions as shown by Warehouse Receipt and/or Rules and Regulations on File in This Office and with the Railroad Commission of the State of California.'
At plaintiff's request defendant issued the warehouse receipts to Security-First National Bank of Los Angeles as pledgee for Hismoco (American Co.) 2
The document certifies that defendant has received the goods 'subject to all of the terms and conditions contained herein and on the reverse hereof.' At the bottom of the face of the receipt is this: Also: 'The Party Accepting This Receipt Thereby Agrees To Its Conditions.' On the reverse side are 'Standard Terms and Conditions' which include the following: 'These goods are stored and handled subject to the rules, regulations, rates and charges as published in our warehouse schedules on file with the Railroad Commission of California and in our office, and such amendments thereto as may hereafter be filed.' Also: 'Rates are subject to limited liability as provided by the Tariffs on file with the Railroad Commission and in this office.' Neither plaintiff nor the bank made any declaration of value of the peppers at any time.
They were inspected by plaintiff before his purchase in January 1950 and every two or three months during 1950 and found to be in good condition, at least as late as September 1950. When withdrawn from storage in January and February 1951, the chilies were moldy and damaged. They were sold for $5,131.10, resulting in a loss of $23,112.30, the amount of the verdict.
Defendant insisted throughout the trial that its liability was limited, as a matter of law, to $100 per ton of 2,000 pounds, because no higher value was declared and no greater rate than 12 1/2 cents per hundred pounds was charged to or paid by plaintiff. Plaintiff, on the other hand, tried the case upon the theory that such a limitation of liability, based upon an agreed value, does not bind the bailor unless he voluntarily accepts a warehouse receipt so declaring and does it with full knowledge and understanding on his part. The trial judge accepted this thesis as correct and instructed the jury accordingly.
Defendant contends that the trial judge committed prejudicial error:
First: In instructing the jury as follows: 'While a contract of storage between a warehouseman and the owner of property being stored may, under proper circumstances, contract to limit the amount which the owner may recover from the warehouseman in the event the latter should be liable for loss or damage to the property, such special contract of limitation must be freely and fairly made between the parties and it must appear that the owner of the property accepted the contract with knowledge of its terms, such knowledge being a necessary condition to the owner's assent to the limitation.
This instruction was erroneous because it required actual notice by plaintiff of the warehouse receipt, etc., and placed the burden on defendant to prove the fact. There was no evidence of unfair dealing or anything departing from the ordinary course of business conducted by businessmen.
Second: In refusing to give defendant's requested instruction reading: 'If you find that when the non-negotiable warehouse receipt (Plaintiff's Exhibit 1) was received by the plaintiff from the Security-First National Bank of Los Angeles, the circumstances were such that a prudent man could and would have read the limitation of liability on the document, then you are instructed that in law the plaintiff had notice of the limitation of liability.
'If you find that when tne non-negotiable warehouse receipts (Plaintiff's Exhibit 1) and the transfer memorandum (Defendant's Exhibit A) were received by plaintiff's agents acting for him the circumstances were such that a prudent man could and would have read the limitation of liability on these documents, then you are...
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