Schroeder v. Auto Driveaway Co.

• Citation: 11 Cal.3d 908,114 Cal.Rptr. 622
• Decision Date: 03 July 1974
• Docket Number: S.F. 23106
• Court: United States State Supreme Court (California)
• Parties: , 523 P.2d 662 Warren O. SCHROEDER et al., Plaintiffs and Respondents, v. AUTO DRIVEAWAY COMPANY et al., Defendants and Appellants. In Bank

Page 622

114 Cal.Rptr. 622

11 Cal.3d 908, 523 P.2d 662

Warren O. SCHROEDER et al., Plaintiffs and Respondents, v. AUTO DRIVEAWAY COMPANY et al., Defendants and Appellants.

S.F. 23106.

Supreme Court of California,

In Bank.

July 3, 1974.

William L. Ferdon, Robert W. Tollen and Chickering & Gregory, San Francisco, for defendants and appellants.

Joseph B. Harvey, Susanville, for plaintiffs and respondents.

TOBRINER, Justice.

Defendants appeal from a judgment following jury verdict for plaintiff Madeleine Schroeder awarding her $25,000 in compensatory damages and $10,000 in punitive damages. We uphold the judgment as to liability for the reasons stated in the opinion of the Court of Appeal, which, as to the issue of liability, we adopt as our opinion. Although defendants maintain that the damage award is excessive, they did not raise this issue by a motion for new trial in the superior court and may not present it for the first time on appeal. Moreover, we do not find the damage award excessive. We conclude that the judgment as to both liability and damages should be affirmed.

1. Statement of facts.

In 1971, plaintiffs Mr. and Mrs. Schroeder, an elderly couple, decided to move from Phoenix, Arizona to Susanville, California. Mrs. Schroeder had purchased a large quantity of new and secondhand goods, and intended to open a store in Susanville for the sale of this merchandise. Plaintiffs also bought a van for the purpose of transporting the goods to Susanville, and sought to hire a driver for the van.

Defendant Auto Driveaway Company is a common carrier that furnishes drivers for hire. Mrs. Schroeder contacted defendant Trimble, the Phoenix representative of Auto Driveaway, to arrange for a driver for the van. Trimble called at the plaintiff's home on August 13, 1971, observed the partially loaded van, and filled out a shipping order and freight bill which he gave to plaintiffs. This document provided that for a consideration of $189 ($139 in advance; $50 on delivery) Auto Driveaway would pick up the loaded van and drive it to Susanville.

On the back of the form appeared 15 conditions, all but one, which required a full gas tank at time of pick-up, in exceedingly small print. Condition number four stated a limitation of liability and read as follows:

'4. Unless a greater value is declared hereon, the owner hereby agrees and declares that the value of the baggage, personal effects and sporting equipment described herein is released to a value not exceeding $50.00 per shipment.

'The agreed or declared value of the property is hereby specifically stated by the owner to be not exceeding $_ _ per shipment. For all shipments where luggage and personal effects exceed $50.00 in value, there will be an additional charge. Driveaway cannot accept shipments wherein the personal contents exceed $250.00 in value.'

Condition five specified items which should not be transported in the car; the list includes binoculars, cameras, guns, and 'articles of unusual value.'

According to Mrs. Schroeder, neither she nor her husband read the reverse side of the contract. Trimble did not call their attention to the provisions on the back of the contract, discuss the weight or contents of the van, or inform them of any limitation upon Auto Driveaway's responsibility for the value of the goods carried. When she was handed the contract, Mrs. Schroeder asked Trimble 'am I . . . signing my life away;' Trimble reassured her, 'no, it is a matter of picking up your van and delivering it to the destination.' Mrs. Schroeder testified, 'I said, you know there is (sic) very valuable goods on there and I have worked hard to get it and I have put all my money in there I had, because I wanted these goods to arrive here safely. . . .'

When Trimble picked up the van, it was loaded with 97 wax chicken boxes (20 30 12 inches), other smaller cartons, a trunk, two footlockers, and a floor polishing machine. ¹ The load occupied the interior of a van 8 1/2 feet high and 14 feet long, and weighed about 3,840 pounds. Trimble was in a position to observe the extent and weight of the load.

Trimble hired defendant Roberts to drive the van to Susanville. Under both Interstate Commerce Regulations and the contract between Auto Driveaway and plaintiffs, the driver was required to proceed by the most expeditious and suitable route. Instead she and her companion, defendant Linnuste, decided to detour to the Grand Canyon for sightseeing. About 20 miles north of Flagstaff, on their way to the Grand Canyon, the van skidded off a mountain road. The van itself was totally destroyed, and much of the contents damaged.

Auto Driveaway towed the van back to Flagstaff, and left the contents, covered with a polyethylene sheet, in the yard of the towing company. Although some cartons were wet, Auto Driveaway did not remove and dry the contents. Several days later an unidentified person notified plaintiffs, who had arrived in Susanville, of the accident. Defendants did not tell plaintiffs the location of the van or its goods nor attempt to complete the transportation of the goods to Susanville. When plaintiffs engaged an attorney to communicate with Auto Driveaway that defendant responded that it was not responsible for the accident. Finally, after suit was filed in January of 1972, Auto Driveaway told plaintiffs where their goods were stored and made arrangements with plaintiffs' attorney for transportation of the goods to Susanville. When the goods arrived in February large quantities were missing, and much of that received was broken, wet, and mildewed.

Plaintiffs' complaint is in three counts. The first is for breach of the contract, comprising the front of the shipping order and freight bill, under which defendant Auto Driveaway undertook to deliver the van and its contents, undamaged, to Susanville. The second count alleges that Trimble fraudulently misrepresented that Auto Driveaway was authorized to transport plaintiffs' van and goods, although he knew that the value of the goods far exceeded $250. The third count asserted that defendants converted the van and its contents.

The jury returned a verdict for plaintiff Madeleine Schroeder, and against the defendants, for $25,000 compensatory and $10,000 punitive damages. Defendants did not move for a new trial, but appealed from the judgment.

2. Issues concerning liability.

We believe that the Court of Appeal correctly resolved the issues pertaining to the liability of the defendants. ² We therefore adopt the relevant portion of the opinion of the Court of Appeal prepared by Justice Pierce as and for the opinion of this court. The opinion follows: ^*

Adequacy of Instructions

Since Auto Driveaway is a common carrier in interstate commerce, it is subject, through 49 U.S.C.A., section 319, to the provisions of section 20(11) of the same title. Defendants offered and the court gave the following instruction: 'Any common carrier by motor vehicle receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to said property caused by it; and any said common carrier by motor vehicles so receiving property for transportation from a point in one state to a point in another state shall be liable to the lawful holder of said receipt or bill of lading, for the full actual loss, damage or injury to such property caused by it.'

On appeal, defendants contend that this instruction 'did not properly state the law.' ³ To the contrary, the instruction read in context Is an accurate statement. It states the general rule applicable to shipments of property in interstate commerce as set forth in 49 U.S.C.A., section 20(11). There are exceptions and limitations to the general rule expressed in that section. They were set forth in additional instructions given by the court almost precisely in the language of the statute covered. (( ) These instructions advise the jury of the general rule applicable to common carriers such as those we are discussing--liability for full actual damage to property caused by it notwithstanding any limitation of liability in any contract with a proviso that the Interstate Commerce Commission may expressly order the common carrier to maintain lower rates dependent upon the value declared in writing by the shipper--in which case the carrier's obligation would not exceed the agreed-upon value. There is a further condition, however, that such limitation 'is not effective unless the shipper is informed of the limitation and is given a fair opportunity to choose between a higher and lower liability or to refuse to make the shipment if the property is of a value unacceptable for shipment by the carrier.')

The jury was further instructed that under the terms of a specified order of the Interstate Commerce Commission, Auto Driveaway was authorized to limit its liability only in regard to personal effects not exceeding 500 pounds in weight. ( )

It is not improper for the court to refuse a proposed instruction where the instructions given include the substance of the proposed instruction. (Crooks v. Pirrone (1964) 228 Cal.App.2d 549, 554, 39 Cal.Rptr. 622.) That was accomplished in the case at bench. Moreover, the instruction offered by defendants and refused by the court, and of which refusal defendants complain, was so worded that it would have been confusing to the jury to include it. ⁴

It has not been pointed out to this court wherein the court failed to cover adequately both pros and cons of an interstate carrier's obligation. As against defendants' assignment of error we hold that the court's jury instructions are adequate.

The Alleged Misrepresentation As a Proximate Cause of Injury and Damage

Defendants on appeal, assuming arguendo that they were guilty of the misrepresentations contended by the Schroeders, argue that any damages...