Opinion
Hearing Granted by Supreme Court March 1, 1935.
Appeal from Superior Court, Los Angeles County; Thomas P. White, Judge.
Action by M. S. Constantian and others against the Mercedes Benz Company. Judgment for plaintiffs, and defendant appeals.
Modified.
COUNSEL
Stick & Moerdyke, of Los Angeles, for appellant.
C. H. Hartke and John Y. Pashgian, both of Los Angeles, for respondents.
OPINION
CONREY, Presiding Justice.
The plaintiffs rented to the defendant the goods described in the complaint, and the same were destroyed by fire. Thereafter plaintiffs brought this action to recover the value of the property lost. The plaintiffs recovered judgment, and the defendant now appeals therefrom.
Appellant states the question involved upon appeal as follows: "Is a bailee for hire liable for the value of the goods which were destroyed during the bailment, by a fire which was not caused by the negligence of the bailee, in the absence of an agreement expressed, or fairly implied, enlarging his ordinary liability as a bailee?" We shall assume that under the conditions stated in the question no liability would be imposed upon the bailee. Such seems to be the law, and respondent does not contend against this proposition. Respondent does contend, however, that the defendant in this case did by contract assume and agree to be liable for any loss or damage to said property while in his possession; and with respect to a part of the property, that in violation of the contract the defendant bailee without permission of the bailor removed the property to a place other than the place where it was to be used, and the property was there destroyed by fire, although without negligence on the part of the bailee.
In accordance with the facts alleged by plaintiffs, the court after hearing the evidence, found that a portion of the described items of property were rented to the defendant, and accepted by defendant, to be used only at its place of business in the city of Los Angeles, and that without permission or knowledge of the plaintiffs defendant removed said property from its place of business to a place of exhibit in an automobile show in another part of the city, at which place all of the property described in the complaint was destroyed by fire. The evidence is sufficient to sustain the court’s finding upon these questions of fact.
There was a second lease, of other property consisting of three oriental rugs, which were rented to be used at the defendant’s place of exhibit in the automobile show. But as to all of the property described in the complaint the plaintiffs alleged and the court found, that the defendant assumed the risk and agreed to become and be responsible and liable for any loss or damages thereto while in its possession. The court did find, however, and in fact it was stipulated, that the destruction of the property by fire was without any fault or negligence on the part of the defendant.
It is contended by appellant that the court erred in that part of finding two which is as follows: "That defendant assumed the risk and agreed to become and be responsible and liable for any loss or damage to said personal property or any part thereof while in its possession." It does not appear that in the conversations between the representatives of the parties, preliminary to delivery of the goods, any statements were made on the subject of responsibility for any such loss or damage. The finding, if sustained at all by the evidence, must depend upon a printed statement in the "delivery sheets" which, on three separate occasions, accompanied the delivery of goods to the defendant. These sheets were upon a printed form. At the top, in capital letters, were the words, "Delivery Sheet." At the bottom, following the space left for description of items delivered, there were two printed lines. The first, in small capitals, said: "This sheet will be confirmed by regular invoice." The lower line, in ordinary type, said: "Renters responsible for loss or damage of goods while in their possession." Two of these delivery sheets, as produced in evidence, contained an acknowledgment of receipt, signed by an authorized representative of the defendant. The third was signed by a man who was present and received the goods, but whose authority to receipt therefor is not proved, as he was not in the employ of defendant. But defendant did receive the property.
In the first transaction of hiring of these rugs and furnishings, the bailee was represented by its manager, Mr. Smith, and the bailors by Mr. Arzivian. In response to a telephone message, Mr. Arzivian brought to the defendant’s place of business a truck load of goods, from which the articles hired were selected. The delivery sheet was made out in duplicate, signed by an employee of defendant, under direction of Mr. Smith, and a copy retained by each party. Nothing was said about responsibility for loss or damage, and nothing was said about the printed statement on that subject at the bottom of the delivery sheet. It is also true that this subject was not discussed in connection with the subsequent deliveries. There is no evidence that the printed matter at the bottom of the delivery sheets was ever brought to the attention of the defendant, other than as that fact may be inferred from the fact that the delivery sheets were in defendant’s possession. It is upon this foundation that appellant contends that it did not agree to be responsible or liable for any loss or damage to said personal property while in its possession, in the absence of any fault or negligence on the part of appellant. It is our opinion that on this proposition the contention of appellant should be sustained.
"The rule seems to be firmly established that printed conditions on letter or billheads, or order blanks of the proposer not specially referred to or called to the attention of the other party to the contract, will not be regarded as a part thereof." May Hosiery Mills v. G. C. Hall & Son, 77 Cal.App. 291, 295, 246 P. 332, 333, and cases there cited. As was said in relation to printed matter in a bank passbook: "The case is not one in which the party must know that he is accepting a contract, as where he is accepting an insurance policy, and should therefore realize the necessity of acquainting himself with its terms." Los Angeles Inv. Co. v. Home Savings Bank, 180 Cal. 601, 613, 182 P. 293, 298, 5 A. L. R. 1193. In the ordinary course of business, one signing a "Delivery Sheet" would know that he was acknowledging a receipt of the goods. He would not know that he was making a contract, or changing the terms of liability which the law imposed upon him as purchaser or bailee of the property delivered to him. We are aware that there are some decisions which perhaps are not consistent with the conclusion above stated. In Taussig v. Bode & Haslett, 134 Cal. 260, 66 P. 259, 54 L. R. A. 774, 86 Am. St. Rep. 250, it was held that the owner of goods deposited by him in a warehouse was bound by conditions printed plainly on the face of the warehouse receipt; that it was his duty to take note of the contents of the receipt, if he had the opportunity to do so. That case is discussed in Wilson v. Crown Transfer, etc., Co., 201 Cal. 701, 712, 258 P. 596, pointing out some of the differences in fact which should control the application of the rule stated in the earlier decision. Upon the facts shown in the present case, we are satisfied that the printed statement in the "delivery sheets," to which we have referred, was not a part of the contract between the parties.
We have stated that upon sufficient evidence the court found that without permission or knowledge of the plaintiffs and contrary to the terms of its agreement, the defendant removed to the automobile show the rugs and furnishings included in the first transaction. By reason of this fact we think that the defendant made itself liable for the loss which followed, and which would not have occurred if the goods had not been so removed. 6 Cor. Jur. p. 1111; Welch v. Mohr, 93 Cal. 371, 28 P. 1060; St. Losky v. Davidson, 6 Cal. 643; Lilley v. Doubleday, L. R. 7 Queen’s Bench 510.
The complaint alleged that the goods included in the first hiring were of a value amounting in all to $1,425, and that the remaining property was of the value of $1,250. The court included both of these in one finding, that the entire value was $2,675. Since the total amount of value thus found is the same as the aggregate of values alleged in the complaint, we interpret this as a finding that the values alleged in the complaint were truly stated.
The judgment was for $2,675, together with $112 unpaid rental, interests, and costs. In conformity with the views herein stated, the judgment is hereby modified by reducing the principal sum thereof from $2,787 to $1,362, and by allowing interest from March 11, 1929, at the rate of 7 per cent. per annum only on the principal sum as thus reduced, with costs as taxed in the original judgment. Appellant shall recover its costs of this appeal.
We concur: HOUSER, J.; YORK, J.