COLGIN v. SECURITY STORAGE & VAN CO., Inc.
No. 37550.
Supreme Court of Louisiana
March 26, 1945
Rehearing Denied June 5, 1945.
23 So.2d 36
Since the evidence produced by plaintiff does not show to our satisfaction that plаintiff was in actual corporeal possession of the property after the recordation of the tax sale, and since plaintiff did not attack the tax sale for more than five years thereafter, the peremption pleaded by defendant must be sustained аnd plaintiff‘s suit dismissed.
For the reasons assigned, the judgment appealed from is affirmed.
Weiss & Weiss, of New Orleans, for defendant and respondent.
PONDER, Justice.
The sole question presented in this review is whether or not a depositor is bound by a provision in a warehouse rеceipt limiting the liability of the depositary.
The plaintiff, Clarence H. Colgin, brought suit against the defendant, Security Storage & Van Company, Inc., seeking to recover the value of a mattress, an art square and certain articles contained in a cedar chest stored with thе defendant. The purpose of the suit is to recover for the loss of these movables while on deposit with the defendant.
On trial, the lower court gave judgment in favor of the plaintiff for $709.50 with legal interest from January 2, 1940, until paid. On appeal, the Court of Appeal for the Parish of Orleans affirmed this judgment. The Court of Appeal reduced its original judgment on rehearing to $137.50. The reduction was brought about by the appellate court‘s holding that the defendant was only liable to the extent of $50 for the contents of the cedar chest under a provision in the warehouse receipt limiting the liability of the defendant to that amount. The plaintiff applied for and was granted a review by this Court.
The defendant, in its brief, asks for the writs to be recalled. This in effect is a request for the affirmance of the judgment. Such being the case, the only
There seems to be no controversy over the facts in the case. On October 31, 1938, the cedar chest was delivered to the defendant‘s warehouse by an independent drayman engaged by Mr. George Harang, brother-in-law of the plaintiff. Mr. Harang, at the time, notified the defendant by telephone that the chest was being delivered by the drayman. Mr. Harang called at the warehouse later in the day to settle a bill for storage on other propеrty belonging to the plaintiff. He was informed at that time that the cedar chest had been received. Neither the drayman nor Mr. Harang was presented with a warehouse receipt. The defendant‘s office manager was present when the cedar chest was received, and on the same day mailed a warehouse receipt to the plaintiff‘s wife. On the face of the warehouse receipt, the following provision is printed in small type:
“The owner declares that the value of any article, piece, package оr receptacle, including the contents thereof, packed, transported, received, handled or stored in this lot, does not exceed the sum of Fifty Dollars, and the value of any one load does not exceed Two Thousand Dollars, upon which valuations the rates shown below have been based, and the Owner, in consideration of said rates charged, agrees that the liability of the Company, for any cause which would make it liable, shall in no event exceed the sums so above declared, unless the Owner declares a greаter value in writing, and agrees to pay an additional
charge of — cents per month for each $100.00 or fraction thereof in excess of the sum above declared.”
On the original appeal, the Court of Appeal arrived at the conclusion that the clausе in the receipt limiting the defendant‘s liability was not binding on the plaintiff. Its finding was based on the holding in the case of Williams v. Gallagher Transfer & Storage Co., 170 La. 461, 128 So. 277. On rehearing, the Court of Appeal reversed its original judgment in this respect and held that the clause limiting the defendant‘s liability was binding on the plaintiff. Its holding to this effect was largely prеdicated on the finding in the case of Central Storage Warehouse Co. v. Pickering, 114 Ohio St. 76, 151 N.E. 39, 40, 142 A.L.R. 768.
The factual situation in the Gallagher case, supra, is so different from that of the present case, it has no application.
In the Pickering case, supra, the warehouse receipt was denominated on its face “warehouse receipt and contract,” and contained the follоwing admonition printed in red ink: “Read this receipt and contract carefully.”
The receipt in the present case contains no such admonition. The receipt is not labeled as a contract. In the Pickering case, supra, the warehouse receipt was presented to thе depositor at the time the goods were stored. In the present case, the warehouse receipt was mailed subsequent to the deposit.
“The voluntary deposit can only be regularly made by the owner of the thing deposited, or with his consent expressed or implied.
“Consent is implied when the owner has carried or sent the thing to the depositary, and the latter knowing that the thing had been sent, has not refused to receive it.”
“The depositary is bound to use the same diligence in preserving the deposit that he uses in preserving his own property.”
“The provision in the preceding article is to be rigorously enforced.
“1. Where the deposit has been made by the request of the depositary.
“2. If it has been agreed that he shall have a reward for preserving the deposit.
“3. If the deposit was made solely for his advantage.
“4. If it has been expressly agreed that the depositary should be answerable for all neglects.”
“The depositary ought to restore the precise object which he received.
“Thus a dеposit of coined money must be restored in the same specie in which it was made, whether it has sustained an increase or diminution of value.”
Undoubtedly, the depositor is charged with knowledge of the mandatory provisions of the act and the codal articles governing deposit. However, as to terms and conditions not mandatory but merely permissive, which redound to the benefit of the warehouseman, the depositor could not be charged with notice оf such unless they are brought to his attention or he assents to them as a part of the contract between himself and the warehouseman. The act does not require the depositary to embody a condition limiting his liability but merely permits him to do so.
A contract is implied by law when thе deposit is received. To modify the contract implied by law, the special provisions must be either a part of the original contract or contained in an amendatory contract. In order for the special provisions to be effective, the assent оf both parties
The limiting clause was not brought to the attention of the depositor, and we are at a loss to see how he could be charged with consenting to a limitation of defendant‘s liability.
From our research, we find the case of Brasch v. Sloan‘s Moving & Storage Co., Mo.App., 176 S.W.2d 58, to be more applicable than the cases cited by the parties to this suit. In the Brasch case, supra, the plaintiff called the defendant by teleрhone and requested it to come to her apartment and pick up some furniture for storage. In response to the inquiry, the plaintiff was merely told the amount of the monthly storage charge. Thereafter, the defendant mailed a warehouse receipt containing a clause limiting liability, similar to the one involved in the present case, which was not read by the plaintiff. The Missouri warehouse receipts act is identical with that of Louisiana. When the plaintiff called for her effects, some of them were missing. The court gave the plaintiff judgment for the value of the lost articles. It was pointed out therein that the plaintiff was not bound by the limitation clause for the reason that she had not assented to it, and the limitation clause could not form a part of the contract between the parties in the absenсe of the plaintiff‘s assent.
In the case of The Majestic, 166 U.S. 375, 17 S.Ct. 597, 41 L.Ed. 1039, the sylla-
“A notice containing conditions, on the back of a steamship passenger‘s contract ticket, but not referred to therein, except by the words ‘See back’ printed on the face of the ticket does not form a part of the contract binding on the passenger as to the liability of the steamship company for baggage or otherwise, where the passenger‘s attention is not called to the conditions, and there is no proof that he ever read or assented to them.”
The relationship of а proprietor of a parking lot toward his customers is that of a compensated depository.
The rule recognized in this State with respect to local transportation companies engaged in the transportation of baggage is to the effect that a provisiоn on the reverse side of a baggage check limiting the liability of the carrier is not binding on the passenger unless it is called to his attention or he assents to it. Kendall v. Teche Lines, Inc., La.App., 197 So. 810; Lawes v. New Orleans Transfer Co., 11 La.App. 170, 123 So. 144.
The same rule has been applied to limitations of liability contained in bills of lading and receipts given for intrastate shiрments. Baldwin v. Collins, 9 Rob. 468; Thomas v. The Morning Glory and Owners, 13 La. Ann. 269, 71 Am.Dec. 509; Kember & George v. Southern Express Co., 22 La. Ann. 158, 2 Am.Rep. 719; W. H. & C. B. Hodges v. Louisiana Ry. & Nav. Co., 180 La. 3, 156 So. 26. We are not unaware of the fact that a different rule applies to interstate shipments.
It is true that we have a warehouse receipts act, and that its mandatory provisions are binding, but the permissive con-
The Court of Appeal in its final decision in this case was of the opinion that at the time the deposit was made the parties contemplated the issuance of the receipt as a necessary part of the contract.
There is nothing in the evidence to show that the parties intended, at the time the deposit was made, that there would be any limitation placed on the liability of the defendant.
Cоunsel points out that the plaintiff had deposited movable effects with the defendant on other occasions and contends that the plaintiff was therefore cognizant of the fact that this limitation was included in the warehouse receipts.
The testimony offered on behalf of the plaintiff is to the effect that he did not read the small print on the warehouse receipt wherein the limitation of liability clause was included, and there is nothing in the record to show that the plaintiff had knowledge of the limitation contained in this receipt or in reсeipts issued when he made other deposits.
It is elementary that a contract arises only where both parties have agreed to its terms. Under the facts in this case, the plaintiff did not consent to the limitation. Moreover, where a depositary modifies the contraсt implied by law, it is incumbent on him to establish the special
The defendant cites the case of Faultless Clothing Co., Inc. v. Branch Storage Co., Inc., 165 Misc. 658, 300 N.Y.S. 642.
In that case, the plaintiff had been shipping through the defendant for a considerable length of time and had at his place of business a book of defendant‘s blank receipts, containing the liability clause. One of thesе receipts was used for the shipment of the goods in controversy. The court, in view of these facts, arrived at the conclusion that the plaintiff, because of his long experience in the shipment of goods, knew that bills of lading contained various covenants and conditions and had had ample time to familiarize himself with the covenants and conditions. The holding is in effect that the plaintiff was charged with knowledge of the covenants under the peculiar facts of the case. The case is not in point with the instant case for the reasоn that the depositor herein did not expressly or impliedly consent to the limitation of liability.
For the reasons assigned, the judgment of the Court of Appeal for the Parish of Orleans is amended so as to award the plaintiff $709.50 with legal interest from January 2, 1940, until paid. All costs to be paid by the defendant.
O‘NIELL, C. J., dissents.
ROGERS, J., dissents, being of the opinion that the decision of the Court of Appeal is correct. See 17 So.2d 478.