Picker v. Searcher's Detective Agency, Inc.

• Decision Date: 14 July 1975
• Docket Number: No. 74-1718,74-1718
• Citation: 515 F.2d 1316
• Parties: Richard PICKER, Appellant, v. SEARCHER'S DETECTIVE AGENCY, INC., et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1316

515 F.2d 1316

169 U.S.App.D.C. 345

Richard PICKER, Appellant, v. SEARCHER'S DETECTIVE AGENCY, INC., et al.

No. 74-1718.

United States Court of Appeals District of Columbia Circuit.

Argued April 16, 1975.

Decided July 14, 1975.

David T. Bryant, Washington, D. C., for appellant.

James E. Brammer, Washington, D. C., with whom James P. Schaller, Washington, D. C., was on the brief for appellee Searcher's Detective Agency.

Samuel Intrater, Washington, D. C., with whom Albert Brick, Washington, D. C., was on the brief for appellee American Numismatic Assn.

Before BAZELON, Chief Judge, FAHY, Senior Circuit Judge, and WRIGHT, Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge FAHY.

FAHY, Senior Circuit Judge:

The American Numismatic Association (ANA), in connection with its annual national convention to be held at a hotel in Washington, D. C., arranged for the display and selling of coins, medals, paper money and like objections during the convention. Appellant Richard Picker, a professional coin dealer, completed an application form supplied by ANA in October 1970, and requested bourse (display and selling) space for his coin and currency collection at the convention, to be held the following August. His application was accepted in March 1971. On the afternoon of August 14, 1971, the last day of the convention, Picker placed his collection in two attache cases and checked them at a security room provided by ANA at the hotel. ¹ He returned to repossess the two cases the following day. Delivery was not made, for the two cases had disappeared. He sued appellees ANA and Searcher's Detective Agency, Inc. (Searcher's) in the District Court for the value of the collection, alleged to be $135,000. Searcher's had entered into a contract with ANA under which it would furnish protection at the convention and security room for safekeeping of the displays when not on exhibit. During the convention period employees of both ANA and Searcher's were in attendance at the security room.

Count I of the complaint alleged simple negligence in the failure of appellees to return the goods, Count II gross negligence. The court dismissed the complaint against appellees on Count I. ² Count II was submitted to the jury, which returned a verdict for appellees. The appeal presents the question whether the claims under Count I should also have been submitted to the jury. We conclude that there were cases for submission to the jury under Count I, and accordingly reverse.

I

The delivery of the attache cases to appellees as bailees, and their failure to return the bailed property when duly claimed, raised a prima facie case of negligence under Count I. Quinn v. Milner, 34 A.2d 259 (D.C.Mun.App.1943); Jones v. Warner, 57 Wash.2d 647, 359 P.2d 160 (1961); Banachowski v. Saunders, 187 A.2d 891 (D.C.C.A.1963); Star Pontiac Company, Inc. v. Eastern Insurance Company, 184 A.2d 200 (D.C.Mun.App.1962). Appellees defend that Picker had released them of liability except for $25.00 for each article lost. Two documents are involved in their defense. One is the application form sent by ANA to Picker for participation in the bourse, which he signed and returned in October, 1970; the other is a three-part tag used by the appellees in operating the security room. The fifth of seven paragraphs in the application reads in pertinent part as follows:

A security room will be available for all officially registered ANA members during the convention period. Police protection and armed guards will be provided for the bourse and exhibit areas, but users thereof are expected to insure themselves against any loss sustained. The undersigned specifically releases the ANA, its officers, members and/or committees, either in their official, individual or personal capacities by reason of any loss, damage or injury whatsoever sustained, either directly or indirectly in connection with the bourse, security room, exhibit and/or convention.

The tag used at the security room is in three parts, separated by perforations. Two parts contain only identical numbers and a place for the bailor to sign. One of these is signed and placed on the article when it is checked in. The other is retained by the bailor as his claim check and signed when he seeks to repossess the article. The center part, retained by the bailees in the security room file, is signed when the article is presented for safekeeping. This part reads as follows:

II

The Liability of Searcher's for Simple Negligence

1. Searcher's contends the release of liability clause in the application inures to its benefit and bars recovery for simple negligence. We do not agree. The release clause runs in terms only to "ANA, its officers, members and/or committees, either in their official, individual or personal capacities . . . ." Searcher's is not among these; and the reference to loss sustained "either directly or indirectly in connection with the bourse, security room, exhibit and/or convention" does not enlarge the category of those protected.

Searcher's relies also, however, upon the theory that it was an agent of ANA and thus when acting pursuant to its authority it had those immunities of its principal which were not personal to the principal, citing, inter alia, Leather's Best, Inc. v. S. S. Mormaclynx, 451 F.2d 800 (2d Cir. 1971). It is there observed in dicta that this is the New York rule in the context of bailments:

an agent acting within the scope of its authority is entitled to the benefit of any contractual limits upon the liability of its principal.

Id. at 817. There is also Ohio authority for such a rule. Employers' Fire Ins. Co. v. United Parcel Service of Cincinnati, Inc., 89 Ohio App. 447, 99 N.E.2d 794, 799 (1950). No District of Columbia case, however, so holds, and the Supreme Court in Herd & Co. v. Krawill Machinery Corp., 359 U.S. 297, 79 S.Ct. 766, 3 L.Ed.2d 820 (1959), has held otherwise. The Court there considered whether the provisions of section 4(5) of the Carriage of Goods by Sea Act (46 U.S.C. § 1304(5)) or parallel provisions of an ocean bill of lading, limiting the liability of an ocean carrier to a shipper to $500 per package of cargo, also limited the liability for negligence of an independent stevedore company engaged by the carrier to load the cargo aboard the ship. The Court pointed out that the bill of lading referred not to the liability of the stevedore or agent but of the carrier. Adverting to the theory which had been adopted in A. M. Collins & Co. v. Panama R. Co., 197 F.2d 893 (5th Cir. 1952), cert. denied, 344 U.S. 875, 73 S.Ct. 168, 97 L.Ed. 677 (1952), the Court found the premise of that decision to be "that all agents of the carrier who perform any part of the work undertaken by the carrier in the contract of carriage, evidenced by the bill of lading, are, by reason of that fact alone, protected by the provisions of the contract limiting the liability of the carrier, though such agents are not parties to nor express beneficiaries of the contract." 359 U.S. at 303, 79 S.Ct. at 770. The Supreme Court disagreed with this position:

We are unable to agree with that conclusion, for we think it runs counter to a long-settled line of decisions of this Court. From its early history this Court has consistently held that an agent is liable for all damages caused by his negligence, unless exonerated therefrom, in whole or in part, by a statute or a valid contract binding on the person damaged. . . . In Brady v. Roosevelt S. S. Co., 317 U.S. (575), at page 580-581, 63 S.Ct. (425) at page 428 (87 L.Ed. 471), this Court said that "The liability of an agent for his own negligence has long been embedded in the law," that "withdrawal of the right to sue the agent for his torts would result at times in a substantial dilution of the rights of claimants," and that withdrawal of that right would be "such a basic change in one of the fundamentals of the law of agency (as) should hardly be left to conjecture." This Court has several times held that an agent's only shield from liability "for conduct harmful to the plaintiff . . . is a constitutional rule of law that exonerates him." Sloan Shipyards Corporation v. United States Shipping Board Emergency Fleet Corporation, 258 U.S. (549), at page 567, 42 S.Ct. (386) at page 388 (66 L.Ed. 762); Brady v. Roosevelt S. S. Co., 317 U.S., at page 584, 63 S.Ct. at page 430. Any such rule of law, being in derogation of the common law, must be strictly construed, for "(n)o statute is to be construed as altering the common law, farther than its words import. It is not to be construed as making any innovation upon the common law which it does not fairly express." Shaw v. Railroad Co., 101 U.S. 557, 565, 25 L.Ed. 892; see Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 437, 27 S.Ct. 350, 354, 51 L.Ed. 553. Similarly, contracts purporting to grant immunity from, or limitation of, liability must be strictly construed and limited to intended beneficiaries, for they "are not to be applied to alter familiar rules visiting liability upon a tortfeasor for the consequences of his negligence, unless the clarity of the language used expresses such to be the understanding of the contracting parties." Boston Metals Co. v. The Winding Gulf, 349 U.S. 122, 123-124, 75 S.Ct. 649, 650, 99 L.Ed. 933 (concurring opinion). (Footnotes omitted.)

359 U.S. at 303-305, 79 S.Ct. at 770. And see, Cabot Corporation v. S.S. Mormacscan, 441 F.2d 476 (2d Cir. 1971), cert. denied, sub nom., John W. McGrath Corp. v. Cabot Corp., 404 U.S. 855, 92 S.Ct. 104, 30 L.Ed.2d 96 (1971).

We adopt this reasoning as controlling. Moreover, as we have seen, the application signed by Picker, like the bill of lading signed by the carrier in Herd, expressly enumerated to whom it was intended to apply; and Searcher's, like the stevedore company in Herd, was not an ordinary employee of the principal. It was a separate, independent company conducting its own...