Price v. Bekins Van & Storage Co.

176 P. 452 | Cal. | 1918

Defendant appeals from a judgment and an order denying its motion for a new trial.

The suit was for the value of goods destroyed by a fire, which consumed defendant's warehouse in which plaintiff's property was stored.

The amended complaint was in two counts. In the first it was alleged that defendant falsely represented to plaintiff that his goods, placed in storage with defendant, were in a fireproof building customarily guarded by watchmen, night and day, to prevent loss by fire. It was also averred that, relying upon these representations, plaintiff left his property in defendant's custody and agreed to pay a certain monthly charge to defendant for such storage. The second count contains a statement of a cause of action for conversion.

Appellant contends that the court erred in admitting evidence of the fact that certain other warehousemen in Los Angeles employed watchmen at their warehouses, and in instructing the jury that such evidence was admissible and might be considered by the jurors in arriving at their verdict as to what defendant should have done to protect plaintiff's goods.

Respondent insists that the first cause of action was sustained by evidence admittedly free from error; that the issue of negligence was raised by defendant in its answer to the pleading of the second cause of action, wherein said defendant alleged that the loss by fire was without fault on its part, and that, even if it should be conceded for the purpose of argument that general custom among ordinarily careful ware-housemen may not be proven by the method followed by plaintiff, nevertheless the verdict being sustained by ample evidence, free from error in its introduction, establishing the validity of the first cause of action, the error, if any, is immaterial. This contention must be upheld. A general verdict for plaintiff imports a finding in his favor on all the averments of the complaint material to his recovery. (Tremble v. Tuman, 175 Cal. 696, [167 P. 142].) In this case it is conceded that the first cause of action was supported by a showing which was untainted by error under the authorities. (Kirstein v. Bekins Van Storage Co., 27 Cal.App. 586,150 P. 999]; Lynch v. Bekins Van Storage Co., 31 Cal.App. 68, [159 P. 822]; Laux v. Bekins Van Storage Co.,177 Cal. 63, [169 P. 1012]; Hood v. Bekins Van Storage Co.,178 Cal. 150, [172 P. 594].) It, therefore, becomes immaterial whether or not the evidence relative to the issue of negligence in the second count was erroneously admitted, and whether or not the instruction thereon was correct.

The judgment and order are affirmed.

Lorigan, J., and Wilbur, J., concurred.