National Fire Ins. Co. v. Commodore Hotel, Inc.

• Decision Date: 03 February 1961
• Docket Number: No. 38057,38057
• Citation: 259 Minn. 349,107 N.W.2d 708
• Parties: NATIONAL FIRE INSURANCE COMPANY, Inc., Appellant, v. COMMODORE HOTEL, INC., Respondent.
• Court: Minnesota Supreme Court

Page 708

107 N.W.2d 708

259 Minn. 349

NATIONAL FIRE INSURANCE COMPANY, Inc., Appellant, v. COMMODORE HOTEL, INC., Respondent.

No. 38057.

Supreme Court of Minnesota.

Feb. 3, 1961.

Syllabus by the Court

1. To establish bailment relationship there must be delivery of goods from one person to another without a transfer of ownership, and acceptance of such delivery upon an agreement, either express or implied, that the goods are to be returned to owner or otherwise accounted for.

2. Where evidence failed to establish that defendant had accepted delivery of mink jacket from owner, or that owner had parted with its control and custody when she left it in an unattended cloakroom on defendant's premises, Held court correctly determined that bailment relationship between owner and defendant covering such jacket had not been created.

3. Where finding that bailment relationship had not been created is supported by evidence, such finding will not be held fatally defective under Rule 52.01 of Rules of Civil Procedure even though it failed to recite facts upon which such determination was based.

4. Evidence considered and held not to support finding that defendant was negligent in maintaining an unattended, free cloakroom for luncheon and dinner guests without warning sign that patrons used it at their own risk; or in failing to close it altogether, and hence liable for theft of mink jacket left therein by patron who was aware that cloakroom was unattended and accessible from lobby and who had used it under similar circumstances on many prior occasions.

Robins, Davis & Lyons and Donald C. Hanson, St. Paul, for appellant.

Oliver, Gearin, Price & Melzarek, Milton D. Price, Jr., St. Paul, for respondent.

THOMAS GALLAGHER, Justice.

Action by National Fire Insurance Company, Inc., as subrogee of Mrs. Philip Mushkatin, against Commodore Hotel, Inc., a corporation, to recover the value of a mink jacket stolen from Mrs. Mushkatin while she was attending a luncheon on the defendant's premises. Plaintiff as insurer of the jacket reimbursed Mrs. Mushkatin for its loss in the sum of $2,000. In this action it seeks to recover this amount from defendant on the ground that responsibility for the loss rests upon the latter.

The trial court found: (1) That the plaintiff was subrogated to the rights of Mrs. Mushkatin in any claims against the defendant; (2) that defendant was not a bailee of the mink fur jacket, which jacket Mrs. Mushkatin placed in the cloakroom of the hotel of the defendant; (3) that plaintiff failed to establish that defendant was negligent in any respect regarding the loss by theft of the mink fur jacket. This appeal is from an order denying plaintiff's subsequent motion for a new trial.

On appeal plaintiff contends that the evidence compels a finding that defendant had assumed a bailment relationship with respect to the jacket and accordingly had assumed a duty to exercise some degree of care therefor and had been negligent in carrying out such responsibility.

On November 1, 1957, the date of the loss, Mrs. Mushkatin was a guest at a luncheon held at the Commodore Hotel. Hostess for the luncheon was Mrs. Yale Johnson, wife of one of the principal stockholders of defendant. Some 40 or 50 women attended the luncheon which was served in a downstairs dining room. At the suggestion of Mrs. Johnson, Mrs. Mushkatin and other guests hung their coats in a cloakroom on the main floor across from the lobby desk. This room is described as having a Dutch-type or half door as well as a full door. The cloakroom was unattended. Mrs. Mushkatin testified she had used it for similar purposes on some 50 prior occasions and that on most of such occasions no one was in attendance in the room.

After the luncheon the guests engaged in a card game until about 4:30 p.m. When Mrs. Mushkatin and another lady then went to the cloakroom to obtain their coats, they discovered that their costs had been removed.

1. We are of the opinion that the evidence outlined is insufficient to establish that a bailment relationship covering the mink jacket existed between Mrs. Mushkatin and defendant on the occasion described. To create such a relationship there must be delivery of goods from one person (the bailor) to another (the bailee) without a transfer of ownership, and acceptance of such delivery by the bailee upon an agreement, either express or implied, that the goods are to be returned to the bailor or otherwise accounted for. The bailee's duty to exercise due care with respect to the goods arises because of his acceptance of their possession and his subsequent custody and control over them. Norris v. Boston Music Co., 129 Minn. 198, 151 N.W. 971, L.R.A.1917B, 615; Dennis v. Coleman's Parking & Greasing Stations, 211 Minn. 597, 2 N.W.2d 33.

2. Here it is undisputed that Mrs. Mushkatin did not inform defendant or any of its employees that she was leaving a valuable fur jacket in one of the unattended rooms. At no time did she surrender possession of the jacket to the defendant or its employees. There is nothing to indicate that defendant assumed any custody or control over it. Likewise, there is nothing to sustain a finding that there was a constructive or implied delivery of the property from Mrs. Mushkatin to the defendant. Mrs. Mushkatin knew that had she so desired she could have obtained her jacket at any time without the need of consent on the part of anyone representing defendant. As stated in Wentworth v. Riggs, 79 Misc. 400, 406, 139 N.Y.S. 1082, 1087, dissenting opinion, adopted by majority in Id., 159 App.Div. 899, 143 N.Y.S. 955, 957:

'* * * Neither the defendant nor his agents ever...