Opinion
10-25-1949
GARDNER v. JONATHAN CLUB. Civ. 16841.
Murchison & Myers, Bruce Murchison, John B. Myers, Claude B. Cumming, Los Angeles, for appellant. Fulcher & Wynn, Gibson, Dunn & Crutcher, Los Angeles, for respondent.
GARDNER
v.
JONATHAN CLUB.
Oct. 25, 1949.
Hearing Granted Dec. 22, 1949. *
Murchison & Myers, Bruce Murchison, John B. Myers, Claude B. Cumming, Los Angeles, for appellant.
Fulcher & Wynn, Gibson, Dunn & Crutcher, Los Angeles, for respondent.
WOOD, Justice.
Action to recover $5500 which allegedly was 'deposited' with defendant for safekeeping, and which was not returned after demand therefor had been made. Defendant made a motion for a summary judgment in favor of plaintiff for $250, on the ground that defendant's liability was limited to that amount by the statute relating to innkeepers' liability. Defendant filed two affidavits in support of its motion. Plaintiff did not file any affidavit in opposition thereto. The court granted the motion, and plaintiff appeals from the judgment.
The defendant club furnished lodging for hire to its members. Plaintiff's assignor, Mr. Polderman, was a member of the defendant club at the time the alleged deposit was made. He also resided at the club. The club maintained a safe for the safe-keeping of property of its members and lodgers.
On June 18, 1947, Mr. Polderman delivered a sealed envelope (which allegedly contained $5500) to a desk clerk at the defendant club and requested that he place it in the safe. The envelope, which had been furnished to Mr. Polderman by the defendant, had the following printing on it: 'A check 1781 This check to be signed when package is deposited. 'In accepting this envelope and contents for safekeeping, we assume no liability other than that provided for in the Inn Keeper's Act of this state, which has limited our liability so that in no event can we be liable for more than the amount specified in said Act. 'The employee accepting this envelope has no authority to accept same if the contents are valued at more than the amount specified in said Act. 'The contents of this envelope do not exceed a value of $_____ 'Signature of Depositor ________ 'Received by _____ Date ___ 19__ 'Do Not Detach Until Package Is Called For 'Delivery only to owner after signature on Duplicate check 'B' is witnessed and compared.' 'Depositor's B Check 1781 This check to be signed only when package is called for in the presence of the Clerk on duty. 'Signature of Depositor ________ 'Delivered by _____ Date ___ 19__ 'Package will be delivered only to party originally depositing it, whose signature appears on duplicate check on package.'
Mr. Polderman signed his name on the 'A check' in the blank space provided for the signature of the depositor, but he did not fill in the space provided thereon for declaring the value of the contents of the envelope. The clerk then removed the 'B check,' which was detachable from the envelope, and delivered it to Mr. Polderman.
About September 4, 1947, Mr. Polderman presented the 'B check' to defendant and demanded a return of the envelope, but defendant failed to return it to him.
Appellant contends, in substance, that an innkeeper's liability, for money deposited with him, is not limited by statute to $250 if he gives a receipt to the depositor. Section 1860 of the Civil Code, in effect at the time the deposit was made, provides as follows: 'If an innkeeper * * * or lodginghouse keeper, keeps a fire-proof safe and gives notice to a guest * * * or lodger, either personally or by putting up a printed notice in a prominent place in the office or the room occupied by the guest * * * or lodger, that he keeps such a safe and will not be liable for money, jewelry, documents * * * or other articles of unusual value and small compass, unless placed therein, he is not liable * * * for any loss of or injury to such articles, if not deposited with him to be placed therein, nor in any case for more than the sum of two hundred and fifty dollars * * * unless he shall have given a receipt in writing therefor to such guest * * * or lodger.' The B check was a receipt. See Greer v. Los Angeles Athletic Club, 84 Cal.App. 272, 258 P. 155. The liability of defendant, therefore, was not limited by statute to $250. Since there was a triable issue herein, a summary judgment was not proper. See U.S. Fidelity & Guaranty Co. v. Sullivan, 93 Cal.App.2d 559, 209 P.2d 429.
The judgment is reversed.
SHINN, Presiding Justice, and VALLEE, Justice.
We concur. For convenience we shall refer to Mr. Polderman as plaintiff. In our opinion the facts before the court on the motion for summary judgment did not warrant a limitation of defendant's liability to $250.
With certain exceptions stated in sections 1859 and 1860 of the Civil Code, the former section places upon innkeepers the liability of depositaries. Baxter v. Shanley-Furness Co., 193 Cal. 558, 561, 226 P. 391; Providence Washington Insurance Co. v. Hotel Marysville, 60 Cal.App.2d 338, 343, 140 P.2d 698. So far as simple negligence is concerned, that liability is limited by section 1840, which reads as follows: 'The liability of a depositary for negligence cannot exceed the amount which he is informed by the depositor, or has reason to suppose, the thing deposited to be worth.'
The exceptions stated in section 1859 relate to the deposit of specific articles, such as trunks, etc., and consist generally of limitations to stated amounts in the absence of a written agreement by the depositary for the assumption of a greater liability. We mention this section only because the type of receipt issued by defendant is broad enough to cover the subject matter of section 1859. Under the facts of the present case, section 1860 and not 1859 has application.
There is no statutory limitation of the liability of a depositary, generally, except for negligence, and we understand that the limitation of section 1840 applies to simple negligence. There is no limitation of liability of innkeepers where a receipt has been given pursuant to section 1860 other than the general limitation of section 1840. Except as limited by statute, the liability of a depositary is for the value of the goods deposited. Muehlebach v. Paso Robles Springs Hotel, 65 Cal.App. 634, 640, 225 P. 19. There are therefore two situations in which defendant might be held liable for the full amount of money deposited as established by the evidence. (1) For negligence, if defendant issued a receipt for the deposit and also had knowledge or reason to suppose that the envelope contained the amount claimed by plaintiff, and (2) if defendant issued a receipt for the deposit and it was shown that its failure to return it was due to misappropriation or other conduct on its part amounting to more than simple negligence.
With reference to the first situation it is our opinion that the receipt issued by defendant was in form and substance sufficient to remove the limitation of liability prescribed by section 1860 which applies when deposits are accepted and not receipted for in writing. On this point the decision in Greer v. Los Angeles Athletic Club, 84 Cal.App. 272, 258 P. 155, is controlling. The instrument signed by plaintiff here, and issued in two parts by defendant, seems to be just as clearly a receipt as the one considered in the Greer case, although the word 'receipt' did not appear thereon. But the uncontradicted evidence on the motion for summary judgment was that defendant did not know or have any information as to the contents of the envelope or their value. Therefore, if the loss of the money had been shown to have resulted from defendant's negligence, judgment should have gone for defendant, had it not admitted its liability to the extent of $250. But there was no showing whatever that the loss was due to defendant's negligence, nor was the court enlightened in any manner as to what happened to the money. We think the court should have taken a broad view of the case as it was presented on the motion for summary judgment. Prima facie, the facts are that plaintiff deposited with defendant $5,500 to be placed in defendant's safe; defendant issued a receipt for the envelope without making inquiry as to the nature or value of the contents; plaintiff demanded a return of the money and defendant failed to return it; plaintiff brought suit and defendant, without offering any explanation as to what became of the money, admitted liability in the sum of $250 and moved for and had entered a judgment in that amount. Plaintiff does not know, and has been denied the right and opportunity to ever find out, what happened to the money or what defendant did with it. It does not seem to us that a depositary may thus shrug off his duty to account for the property of his depositor, and we are sure that the law does not permit it.
Plaintiff pleaded breach of contract consisting of the deposit, the issuance of a receipt by defendant, a demand for the return of the money and a refusal of the demand. Upon proof of these facts, or their admission by defendant, plaintiff was entitled to a judgment. The only question would be as to the amount of his recovery. It is true that the receipt limited the amount of defendant's liability to the statutory liability of an innkeeper, and that plaintiff appears to have consented to the limitation, but there is no statutory limitation of the liability of an innkeeper for breach of contract to redeliver articles which have been deposited with him to be kept in a safe, for which articles he has issued a receipt, unless his failure to redeliver the articles is due to his negligence alone. Upon proof that defendant was guilty of breach of contract it would have been incumbent upon it to prove that the loss was occasioned through no fault of its own and to thus escape liability, or to prove that the loss was due solely to its negligence and thus gain the benefit of section 1840. It is well settled that in similar situations, upon proof of breach of the contract, the duty rests upon the depositary to account for his failure to return the goods. George v. Bekins Van & Storage Co., 33 Cal.2d 834, 837-838, 205 P.2d 1037, and cases there cited; Greer v. Los Angeles Athletic Club, supra, 84 Cal.App. 272, 281, 258 P. 155; Cussen v. Southern California Sav. Bank, 133 Cal. 534, 537, 65 P. 1099, 85 Am.St.Rep. 221; see also note 13 So.Calif.L.Rev. 164. It is a just and reasonable rule because the bailee has, or should have, knowledge of the facts which would ordinarily be denied the bailor. It seems to us that in a case of this sort the procedure for summary judgment is not appropriate. A full inquiry should be made into the facts in order to determine the extent of the plaintiff's rights and the extent of the defendant's liability. The principles that require an agent to account for the property of his principal which he has handled, also require a depositary to make a full disclosure to the owner insofar as he is able to do so. It was incumbent upon defendant to show that it had fulfilled this duty. Section 1838 of the Civil Code reads as follows: 'If a thing is lost or injured during its deposit, and the depositary refuses to inform the depositor of the circumstances under which the loss or injury occurred, so far as he has information concerning them, or willfully misrepresents the circumstances to him, the depositary is presumed to have willfully, or by gross negligence, permitted the loss or injury to occur.' It may be that defendant can give no satisfactory account of the loss of the money. It will be necessary to a just decision for the court to know whether it can do so. Important inferences might be drawn from defendant's failure or inability to explain the loss.
Plaintiff was entitled to go to trial upon the complaint and was entitled to recover the full value of the deposit as established by the evidence, in the absence of proof by defendant sufficient to establish a want of liability or a lesser liability.
Hearing granted; SHENK, J., not participating. --------------- * Subsequent opinion 217 P.2d 961.