Shamrock Hilton Hotel v. Caranas

• Decision Date: 15 November 1972
• Docket Number: No. 643,643
• Citation: 488 S.W.2d 151
• Parties: SHAMROCK HILTON HOTEL et al., Appellants, v. Maurice CARANAS et al., Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 151

488 S.W.2d 151

SHAMROCK HILTON HOTEL et al., Appellants, v. Maurice CARANAS et al., Appellees.

No. 643.

Court of Civil Appeals of Texas Houston (14th Dist.).

Nov. 15, 1972.

Rehearing Denied Dec. 6, 1972.

Theodore F. Weiss, Jr., Baker & Botts, Houston, for appellants.

Tom Connally, John H. Bennett, Jr., Fulbright, Crooker & Jaworski, Houston, for appellees.

BARRON, Justice.

This is an appeal in an alleged bailment case from a judgment non obstante veredicto in favor of plaintiffs below.

Plaintiffs, husband and wife, were lodging as paying guests at the Shamrock Hilton Hotel in Houston on the evening of September 4, 1966, when they took their dinner in the hotel restaurant. After completing the meal, Mr. and Mrs. Caranas, plaintiffs, departed the dining area leaving her purse behind. The purse was found by the hotel bus boy who, pursuant to the instructions of the hotel, dutifully delivered the forgotten item to the restaurant cashier, a Mrs. Luster. The testimony indicates that some short time thereafter the cashier gave the purse to a man other than Mr. Caranas who came to claim it. There is no testimony on the question of whether identification was sought by the cashier. The purse allegedly contained $5.00 in cash, some credit cards, and ten pieces of jewelry said to be worth $13,062. The misplacement of the purse was realized the following morning, at which time plaintiffs notified the hotel authorities of the loss.

Plaintiffs filed suit alleging negligent delivery of the purse to an unknown person and seeking a recovery for the value of the purse and its contents.

The trial was to a jury which found that the cashier was negligent in delivering the purse to someone other than plaintiffs, and that this negligence was a proximate cause of the loss of the purse. The jury further found that plaintiffs were negligent in leaving the purse containing the jewelry in the hotel dining room, and that this negligence was a proximate cause of the loss.

A motion for judgment n.o.v. and to disregard findings with respect to the findings that plaintiffs' negligence was a proximate cause of the loss of the purse and its contents was granted, and judgment was entered by the trial court for plaintiffs in the amount of $11,252.00 plus interest and costs. Shamrock Hilton Hotel and Hilton Hotels Corporation have perfected this appeal.

We find after a full review of the record that there is sufficient evidence to warrant the submission of appellees' issues complained of and to support the jury findings on the special issues to the effect that the misdelivery was negligence and a proximate cause of the loss to appellees. Article 4592, Vernon's Tex.Rev.Civ.Stat. Ann. (1960), does not apply to limit the hotel's liability to $50.00 since its proviso declares that the loss must not occur through the negligence of the hotel, and such limiting statute is not applicable under the circumstances of this case.

Contrary to appellants' contention, we find that there was indeed a constructive bailment of the purse. The delivery and acceptance were evidenced in the acts of Mrs. Caranas' unintentionally leaving her purse behind in the hotel restaurant and the bus boy, a hotel employee, picking it up and taking it to the cashier who accepted the purse as a lost or misplaced item. The delivery need not be a knowingly intended act on the part of Mrs. Caranas if it is apparent that were she, the quasi or constructive bailor, aware of the circumstances (here the chattel's being misplaced) she would have desired the person finding the article to have kept it safely for its subsequent return to her. See 8 Am.Jur.2d Bailments Sec. 53, p. 959 (1963); and 8 C.J.S. Bailments § 15, pp. 360--362 (1962).

As stated above, the evidence conclusively showed facts from which there was established a bailment with the Caranases as bailors and the hotel as bailee. The evidence also showed that the hotel, as bailee, had received Mrs. Caranas' purse and had not returned it on demand. Such evidence raised a presumption that the hotel had failed to exercise ordinary care in protecting the appellees' property. When the hotel failed to come forward with any evidence to the effect that it had exercised ordinary care, that the property had been stolen, or that the property had been lost, damaged or destroyed by fire or by an act of God, the appellees' proof ripened into proof by which the hotel's primary liability was established as a matter of law. Trammell v. Whitlock, 150 Tex. 500, 242 S.W.2d 157 (1951); Baird v. Williams, 56 S.W.2d 893 (Tex.Civ.App.-Dallas 1933, no writ).

In view of the fact that appellees established the primary liability of the hotel, as a matter of law, the trial court's admission of the testimony as to the declaration made to Mr. Caranas by Mrs. Luster (the latter being deceased at the time of trial) over the objections that such evidence was hearsay became immaterial. In Duncan v. Smith, 393 S.W.2d 798, 803 (Tex.Sup.1965), the Court quotes from C.J.S. wherein it lists the elements necessary to make an out-of-court statement admissible under this exception to the hearsay rule, as follows:

'31A C.J.S., supra, at p. 606, footnote 11, summarizes these factors as:

'(1) Declarations made by a deceased person as to facts presumably within his knowledge, if relevant to the matter of inquiry, are admissible in testimony as between third parties: First, when it appears that declarant is dead; second, that the declaration was against his pecuniary interest; third, that it was a fact with respect to a matter of which he was personally cognizant; fourth, that declarant had no possible motive to falsify the fact declared."

Mrs. Luster's statement failed to meet this test of admissibility in two respects. First, it was not a statement against her pecuniary interest. She too was a bailee of the purse. As shown by authorities above cited the facts establishing her civil liability for the loss of the purse, her receipt of it as bailee and her failure to return it, were already established. Her statement was not as to a fact needed to inflict a pecuniary loss upon her. Perhaps it is unrealistic to assume that Mrs. Luster, untrained in the law, would know that her statement would not supply evidence needed to establish her civil liability. On the other hand, it is just as unrealistic to assume that she would believe that the statement would furnish evidence that did establish such liability. The theory on the basis of which a declaration against interest is admitted in evidence as an exception to the hearsay rule is that it can be reasoned that one would not make a false statement knowing that it was against his pecuniary interest. 2 C. McCormick & R.Ray, Texas Evidence, sec. 1002 (2d ed. 1956).

The second respect in which Mrs. Luster's statement failed to meet the test as to admissibility is in the fact that the declarant had a possible motive to falsify the fact declared. The statement was made at the police station where a criminal investigation of the loss was being conducted. Mrs. Luster was the last person known to the police, the Caranases and the hotel to have had possession of the purse. It was incumbent upon her to explain her disposition of the purse in such a manner as to eliminate any possibility that she was criminally responsible for its loss. The statement she made was calculated to accomplish that purpose. In that respect it was a self-serving declaration and not admissible as evidence against the hotel.

The question of admissibility of evidence is one of law upon which the trial judge must pass. There are some situations wherein some of the surrounding facts indicate admissibility and others inadmissibility and in which the trial judge has discretion to admit or exclude. 1 C. McCormick & R.Ray, Texas Law of Evidence sec. 2 (2d ed. 1956). In the instance here under consideration, however, Mrs. Luster's statement did not to any degree effect her pecuniary liability under the then established facts, it was not a statement as to which it could reasonably be assumed that Mrs. Luster believed that it would impose civil liability on her, and it was a statement which was calculated to serve Mrs. Luster's own purpose in allaying any suspicion of her criminal liability. But the admission of such testimony was harmless error under the circumstances.

Further, this bailment was one for the mutual benefit of both parties. Appellees were paying guests in the hotel and in its dining room. Appellant hotel's practice of keeping patrons' lost personal items until they could be returned to their rightful owners, as reflected in the testimony, is certainly evidence of its being incidental to its business, as we would think it would be for almost any commercial enterprise which caters to the general public. Though no direct charge is made for this service there is indirect benefit to be had in the continued patronage of the hotel by customers who have lost chattels and who have been able to claim them from the management.

Having found this to have been a bailment for the mutual benefit of the parties, we hold that the appellants owed the appellees the duty of reasonable care in the return of the purse and jewelry, and the...