Mieske v. Bartell Drug Co., 45324

• Decision Date: 19 April 1979
• Docket Number: No. 45324,45324
• Parties: , 6 A.L.R.4th 923, 26 UCC Rep.Serv. 262 Edwin MIESKE and Virginia Mieske, husband and wife, Respondents, v. The BARTELL DRUG COMPANY, a Washington Corporation, GAF Corporation, a Washington Corporation, Appellants.
• Court: Washington Supreme Court

Page 40

92 Wn.2d 40

593 P.2d 1308, 6 A.L.R.4th 923, 26

UCC Rep.Serv. 262

Edwin MIESKE and Virginia Mieske, husband and wife, Respondents, v. The BARTELL DRUG COMPANY, a Washington Corporation, GAF Corporation, a Washington Corporation, Appellants.

No. 45324.

Supreme Court of Washington, En Banc.

April 19, 1979.

Perkins, Coie, Stone, Olsen & Williams, Steven S. Bell, Seattle, for appellants.

Stafford, Frey & Mertel, Charles W. Mertel, A. Richard Dykstra, Seattle, for respondents.

BRACHTENBACH, Justice.

This case determines the measure of damages for personal property, developed movie film, which is destroyed, and which cannot be replaced or reproduced. It also decides the legal effect of a clause which purports to limit the responsibility of a film processor to replacement of film.

We will detail the facts later, but the heart of the matter is that plaintiffs delivered already developed movie film to a retail store for the sole purpose of having the film spliced onto larger reels. The film was lost or destroyed by the retailer's processing agent. A jury verdict of $7,500 was returned against the retailer and the agent-processor. Those defendants appeal. We affirm.

The facts are that over a period of years the plaintiffs had taken movie films of their family activities. The films started with the plaintiffs' wedding and honeymoon and continued through vacations in Mexico, Hawaii and other places, Christmas gatherings, birthdays, Little League participation by their son, family pets, building of their home and irreplaceable pictures of members of their family, such as the husband's brother, who are now deceased.

Plaintiffs had 32 50-foot reels of such developed film which they wanted spliced together into four reels for convenience of viewing. Plaintiff wife visited defendant Bartell's camera department, with which she had dealt as a customer for at least 10 years. She was told that such service could be performed.

The films were put in the order which plaintiffs desired them to be spliced and so marked. They were then placed in four separate paper bags which in turn were placed in one large bag and delivered to the manager of Bartell. The plaintiff wife explained the desired service and the manner in which the films were assembled in the various bags. The manager placed a film processing packet on the bag and gave plaintiff wife a receipt which contained this language: "We assume no responsibility beyond retail cost of film unless otherwise agreed to in writing." There was no discussion about the language on the receipt. Rather, plaintiff wife told the manager, "Don't lose these. They are my life."

There was no discussion or agreement about who was going to perform the splicing service.

Bartell sent the film package to defendant GAF Corporation, which intended to send them to another processing lab for splicing. Plaintiffs assumed that Bartell did this service and were unaware of the involvement of two other firms.

The bag of films arrived at the processing lab of GAF. The manager of the GAF lab described the service ordered and the packaging as very unusual. Yet it is undisputed that the film was in the GAF lab at the end of one day and gone the next morning. The manager immediately searched the garbage disposal dumpster which already had been emptied. The best guess is that the plaintiffs' film went from GAF's lab to the garbage dumpster to a truck to a barge to an up-Sound landfill where it may yet repose.

After several inquiries to Bartell, plaintiff wife was advised to call GAF. Not surprisingly, after being advised of the complete absence and apparent fatality of plaintiffs' films, this lawsuit ensued.

At trial defendants Bartell and GAF denied liability. The janitorial service company which apparently removed the film was a defendant. The verdict was against Bartell and GAF but not against the janitorial service company. It is not a party to the appeal. For purposes of appeal, Bartell and GAF admit liability for negligence.

Two main issues are raised: (1) the measure of damages and (2) the effect of the exclusionary clause appearing on the film receipt.

On damages, the defendants assign error to (a) the court's damages instruction and (b) the court's failure to give their proposed damages instruction.

The standard of recovery for destruction of personal property was summarized in McCurdy v. Union Pac. R.R., 68 Wash.2d 457, 413 P.2d 617 (1966). We recognized in McCurdy that (1) personal property which is destroyed may have a market value, in which case that market value is the measure of damages; (2) if destroyed property has no market value but can be replaced or reproduced, then the measure is the cost of replacement or reproduction; (3) if the destroyed property has no market value and cannot be replaced or reproduced, then the value to the owner is to be the proper measure of damages. However, while not stated in McCurdy, we have held that in the third McCurdy situation, damages are not recoverable for the sentimental value which the owner places on the property. Herberg v. Swartz, 89 Wash.2d 916, 578 P.2d 17 (1978); Palin v. General Constr. Co., 47 Wash.2d 246, 287 P.2d 325 (1955); Kimball v. Betts, 99 Wash. 348, 169 P. 849 (1918).

The defendants argue that plaintiffs' property comes within the second rule of McCurdy, i. e., the film could be replaced and that their liability is limited to the cost of replacement film. Their position is not well taken. Defendants' proposal would award the plaintiffs the cost of acquiring film without pictures imposed thereon. That is not what plaintiffs lost. Plaintiffs lost not merely film able to capture images by exposure but rather film upon which was recorded a multitude of frames depicting many significant events in their lives. Awarding plaintiffs the funds to purchase 32 rolls of blank film is hardly a replacement of the 32 rolls of images which they had recorded over the years. Therefore the third rule of McCurdy is the appropriate measure of damages, I. e., the property has no market value and cannot be replaced or reproduced.

The law, in those circumstances, decrees that the measure of damages is to be determined by the value to the owner, often referred to as the intrinsic value of the property. Restatement of Torts § 911 (1939).

Necessarily the measure of damages in these circumstances is the most imprecise of the three categories. Yet difficulty of assessment is not cause to deny damages to a plaintiff whose property has no market value and cannot be replaced or reproduced. Jacqueline's Washington, Inc. v. Mercantile Stores Co., 80 Wash.2d 784, 498 P.2d 870 (1972); Restatement of Torts § 912 (1939).

The fact that damages are difficult to ascertain and measure does not diminish the loss to the person whose property has been destroyed. Indeed, the very statement of the rule suggests the opposite. If one's destroyed property has a market value, presumably its equivalent is available on the market and the owner can acquire that equivalent property. However, if the owner cannot acquire the property in the market or by replacement or reproduction, then he simply cannot be made whole.

The problem is to establish the value to the owner. Market and replacement values are relatively ascertainable by appropriate proof. Recognizing that value to the owner encompasses a subjective element, the rule has been established that compensation for sentimental or fanciful values will not be allowed. Herberg v. Swartz, supra; Palin v. General Constr. Co., supra; Kimball v. Betts, supra. That restriction was placed upon the jury in this case by the court's damages instruction.

What is sentimental value? The broad dictionary definition is that sentimental refers to being "governed by feeling, sensibility or emotional idealism. . . ." Webster's Third New International Dictionary (1963). Obviously that is not the exclusion contemplated by the statement that sentimental value is not to be compensated. If it were, no one would recover for the wrongful death of a spouse or a child. Rather, the type of sentiment which is not compensable is that which relates to "indulging in feeling to an unwarranted extent" or being "affectedly or mawkishly emotional . . ." Webster's Third New International Dictionary (1963).

Under these rules, the court's damages instruction was correct. In essence it allowed recovery for the actual or intrinsic value to the plaintiffs but denied recovery for any unusual sentimental value of the film to the plaintiffs or a fanciful price which plaintiffs, for their own special reasons, might place thereon.

It was proper to reject defendants' proposed damages instruction since it was an erroneous statement of the law. It would have allowed "the amount of money which will reasonably and fairly compensate the plaintiffs for such damages as you find were proximately caused by the negligence of the defendants. If you find for the plaintiffs, your verdict should include the cost to replace or reproduce the lost or destroyed property."

The proposed instruction did not limit recovery to replacement cost only, which was defendants' theory of the case, nor did it deny recovery for sentimental value alone. Consequently, it was too broad. In fact, it was a more liberal damages instruction than the one given. It is not error to refuse an instruction which is not a correct statement of the law. Rickert v. Geppert, 72 Wash.2d 1040, 432 P.2d 645 (1967).

The next issue is to determine the legal effect of the exclusionary clause which was on the film receipt given plaintiff wife by Bartell. As noted above, it read: "We assume no responsibility beyond retail cost of film unless otherwise agreed to in writing."

Is the exclusionary clause valid? Defendants rely upon RCW 62A.2-719(3), a section of the Uniform Commercial Code, which authorizes a limitation or exclusion of consequential damages unless the limitation is unconscionable.

Plaintiff...