Windeler v. Scheers Jewelers

• Decision Date: 17 June 1970
• Citation: 88 Cal.Rptr. 39,8 Cal.App.3d 844
• Court: California Court of Appeals Court of Appeals
• Parties: Phyllis WINDELER, Plaintiff and Respondent, v. SCHEERS JEWELERS, Defendant and Appellant. Civ. 26155.

Page 39

88 Cal.Rptr. 39

8 Cal.App.3d 844

Phyllis WINDELER, Plaintiff and Respondent, v. SCHEERS JEWELERS, Defendant and Appellant.

Civ. 26155.

Court of Appeal, First District, Division 1, California.

June 17, 1970.

Harry Bluer, Oakland, for appellant.

Cresswell, Davis & Lamborn, Oakland, for respondent.

MOLINARI, Presiding Justice.

Defendant appeals from a judgment entered upon a jury verdict awarding plaintiff $4,000 damages for personal injuries and $1,436 for property loss damage resulting from the failure of defendant to return six rings which plaintiff had entrusted to defendant for the purpose of having the stones in said rings removed and reset in a new ring. ¹

Adverting to the facts most favorable to plaintiff, as we must, we observe that at the trial plaintiff testified that upon entrusting the rings to defendant she emphasized the sentimental value of the rings and explained to defendant Myron Scheer, doing business as Scheers Jewelers in Oakland, that the rings were cherished mementos of her husband and were old family rings which she wished to have made into an heirloom for her daughter. Scheer agreed to reset the stones in a setting for the new ring selected by plaintiff. Scheer then placed plaintiff's rings in a package which he mailed by insured mail to Gumpert's, a Los Angeles ring manufacturer, for refabrication.

Plaintiff's rings were never received by Gumpert's nor were they ever found or recovered. Scheer called plaintiff and stated to her, 'You had better sit down, the rings have been lost.' Plaintiff testified that after learning of the loss she experienced terrible headaches, loss of sleep and general nervousness. She further testified that her neck was 'tied up in knots,' and her arms and shoulders ached and were painful. Plaintiff stated that she was forced to remain off work for three days and finally had to see a doctor who prescribed librium ² for her. Further, plaintiff stated she was required to have injections and physiotherapy for her shoulder. In addition to these physical manifestations, plaintiff testified that after the loss she was 'just emotionally broken-up.' Such emotion deterioration was corroborated by plaintiff's neighbor, Elizabeth Palmer, who testified that after the loss plaintiff became very upset and would cry frequently.

With respect to the value of the rings plaintiff testified that after the loss she went to another jewelry store and priced a similar number of diamonds of like quality to approximate the value of the ones lost, and that she also consulted another jeweler as to their value. She testified that in her opinion the lost diamonds were worth $1,463.

Scheer admitted that registered mailing was safer than insured mail, but testified that it was his practice to mail by registered mail only when the item exceeded $150 in value. Scheer testified that he insured the rings for $50 based upon his practice of insuring an item to the extent of its wholesale value. We here observe that at the trial Scheer testified that in his estimation the composite value of the rings was $50.

Following the entry of judgment defendant moved for a new trial pursuant to Code of Civil Procedure, section 657, alleging that the jury verdict was contrary to law, that it was based on insufficient evidence, and was the result of passion and prejudice against defendant. The motion was denied.

The Personal Injuries

Defendant contends that plaintiff was not entitled to recover for her personal injuries. His argument is unclear as to whether he asserts that plaintiff is not entitled to recover because there can be no damages for emotional distress without a showing of some coexisting physical injury or whether she is not entitled to recover for personal injuries at all.

It is now well settled in this state that there can be injury to one's nervous system, as such, as well as to one's body. (Vanoni v. Western Airlines, 247 Cal.App.2d 793, 795, 56 Cal.Rptr. 115; Dillon v. Legg, 68 Cal.2d 728, 735--736, 69 Cal.Rptr. 72, 441 P.2d 912; Sloane v. Southern Cal. Ry. Co., 11 Cal. 668, 680, 44 P. 320; Espinosa v. Beverly Hospital, 114 Cal.App.2d 232, 234, 249 P.2d 843.) As observed in Espinosa, a human body can suffer injury in two ways: by physical impact, and by shock, through the senses, to the nervous system. (P. 234, 249 P.2d 843.)

Our main inquiry, therefore, is directed to whether under the circumstances of this case there can be a recovery for plaintiff's mental suffering and emotional distress. In making this determination we must first ascertain the nature of the relationship which existed between plaintiff and defendant. That relationship was clearly one of bailment. A bailment is generally defined as 'the delivery of a thing to another for special object or purpose, on a contract, express or implied, to conform to the objects or purposes of the delivery which may be as various as the transactions of men.' (H. S. Crocker Co., Inc. v. McFaddin, 148 Cal.App.2d 639, 643, 307 P.2d 429, 432; People v. Cohen, 8 Cal. 42, 43; Niiya v. Goto, 181 Cal.App.2d 682, 687, 5 Cal.Rptr. 642; Greenberg Bros., Inc. v. Ernest W. Hahn, Inc., 246 Cal.App.2d 529, 531, 54 Cal.Rptr. 770.) In sum, a bailment is a contractual relationship. (Greenberg Bros., Inc. v. Ernest W. Hahn, Inc., supra; H. S. Crocker Co., Inc. v. McFaddin, supra.) In the present case plaintiff delivered the rings to defendant for the purpose of having them reset. This was a bailment for mutual benefit since plaintiff was to receive a new ring fabricated with the stones from the rings she delivered to defendant, and defendant was to receive a consideration for having the work performed. (See Perera v. Panama-Pacific Int. Exp. Co., 179 Cal. 63, 64, 175 P. 454; Travelers Fire Ins. Co. v. Brock & Co., 30 Cal.App.2d 112, 113--114, 85 P.2d 905.) Accordingly, since defendant was to receive a consideration he became a depositary for hire. (Civ.Code, § 1851; ³ Niiya v. Goto, supra, 181 Cal.App.2d at p. 689, 5 Cal.Rptr. 642.)

'Where a bailment is for mutual benefit the bailee in the absence of a special contract is held to the exercise of ordinary care in relation to the subject-matter of the bailment and is responsible for loss or injury resulting from his failure to use ordinary care.' (Travelers Fire Ins. Co. v. Brock & Co., supra, 30 Cal.App.2d 112, 114, 85 P.2d 905; 906, Haidinger-Hayes, Inc. v. Marvin Hime & Co., 206 Cal.App.2d 46, 60, 23 Cal.Rptr. 455; § 1852.) As stated in Baxter v. Shanley-Furness Co., 193 Cal. 558, 561, 226 P. 391, 392, "A depositary or bailee for hire is liable only when he has been guilty of some negligence. He is chargeable only with ordinary care and diligence in safeguarding his bailor's property."

In the present case the jury, by its verdict, found defendant to be negligent. This finding is not challenged by defendant. Implicit in this finding is a determination that defendant breached the bailment contract by reason of such negligence. Accordingly, since a bailment is a contract, an inquiry is directed to whether mental suffering and emotional distress are elements of actual damages for breach of such a contract.

Initially, we observe that it is provided by section 3300, in pertinent part, that 'For the breach of an obligation arising from contract, the measure of damages * * * is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom.' In Hunt Bros. Co. v. San Lorenzo Water Co., 150 Cal. 51, 56, 87 P. 1093, 1095, the rule declared by section 3300 is stated thusly: 'It is a well-settled general rule of damages for any breach of contract that the damages that can be recovered for a breach are only such as may reasonably be supposed to have been within the contemplation of the parties at the time of the making of the contract, as the probable result of a breach. Other damages are too remote.' (See also Westervelt v. McCullough, 68 Cal.App. 198, 204, 228 P. 734; Leavy v. Cooney, 214 Cal.App.2d 496, 500, 29 Cal.Rptr. 580.) Within the ambit of these principles there has evolved the rule that where a person contracts, upon a sufficient consideration, to do a particular thing, the failure to do which may result in physical suffering or illness on the part of the other contracting party, he is presumed to have contracted with reference to the payment of damages for such injury or illness in the event such damages accrue by reason of a breach of contract on his part. (Westervelt v. McCullough, supra, 68 Cal.App. at pp. 207--209, 228 P. 734; Chelini v. Nieri, 32 Cal.2d 480, 481--482, 196 P.2d 915; Cresci v. Security Ins. Co., 66 Cal.2d 425, 434, 58 Cal.Rptr. 13, 426 P.2d 173; Cohen v. Groman Mortuary, Inc., 231 Cal.App.2d 1, 3, 41 Cal.Rptr. 481.) That rule is stated thusly in Westervelt: 'Whenever the terms of a contract relate to matters which concern directly the comfort, happiness, or personal welfare of one of the parties, or the subject matter of which is such as directly to affect or move the affection, self-esteem, or tender feelings of that party, he may recover damages for physical suffering or illness proximately caused by its breach.' (68 Cal.App. at pp. 208--209, 228 P. at p. 738.) In its application this rule permits recovery of damages for mental suffering. (Westervelt v. McCullough, supra, 68 Cal.App. at p. 209, 228 P. 734; Chelini v. Nieri, supra; Cresci v. Security Ins. Co., supra.)

In Westervelt damages were allowed for mental anguish resulting from the breach of contract to permit the plaintiff to live in a residence as long as she should live or should desire. In Chelini damages for physical illness, suffering and disability were allowed for breach of a mortician's contract to preserve the body of the plaintiff's deceased mother. Damages for mental suffering were awarded in Cresci upon the breach of a contract providing insurance coverage to the...