113 P. 342 | Cal. Ct. App. | 1910
This action was brought to recover damages alleged to have been suffered by plaintiffs through the breach of contract of defendant as a common carrier to deliver safely a certain trunk and its contents. Judgment was awarded defendant and plaintiffs have appealed.
From the findings of fact made by the trial court it appears that on the twenty-fourth day of June, 1909, plaintiffs delivered to defendant at Long Beach, California, a trunk and its contents. Defendant thereupon undertook and agreed to transmit to Los Angeles and deliver "to plaintiffs or their agent personally, or, if for any reason it was unable so to do, to give notice to said plaintiffs of the arrival of said trunk and contents, and to keep the same upon the responsibility of said defendant as a warehouseman." It is further found that in pursuance of said agreement defendant did transport the trunk, and that it arrived in Los Angeles on the morning of June 25, 1909; that the place of residence of plaintiffs being unknown, defendant on the afternoon of the twenty-fifth day of June deposited in the mail a postcard containing a notice of the arrival of the trunk, which postcard was postmarked, "June 25, 1909, 8 p.m.," and "was placed in the general delivery of the postoffice on the morning of June 26, 1909"; that after mailing the card the trunk was placed by defendant in a fire-proof warehouse; that during the night of June 25th a fire occurred in said warehouse whereby the trunk and contents were damaged to the extent of $300 without any negligence on the part of defendant. Upon these findings it is contended that the judgment entered in favor of defendant was not warranted. There is no disagreement between the parties that the defendant would have been responsible upon its liability as an insurer for any damage done to the trunk or contents from the time delivery was made to it until notice to the consignees of arrival was deposited *793 in the mails. Their point of difference is as to whether or not, upon the mere mailing of notice of arrival, the liability of the defendant was changed from that of insurer to that of warehouseman, with the liability only of a depositary for hire. If the last legal situation resulted immediately upon the mailing of the notification card, then as a warehouseman is only liable for damages caused to property in his custody which arises from his negligence, there would be in this case no right of recovery. If, on the other hand, the responsibility of defendant as an insurer continued until a reasonable time had elapsed for the delivery of the card through the mails, then the plaintiffs were entitled to judgment. The trial judge concluded that the liability of defendant did not continue after the notification card was deposited in the mails, and accordingly entered the judgment indicated. In that determination of the question presented we do not concur.
A careful consideration of the code provisions affecting the way by which a common carrier may change its responsibility from insurer to warehouseman leads us to the conclusion that upon the findings as made judgment should have been entered in favor of plaintiffs. This observation is made, however, leaving aside for the moment another point presented respecting the third alleged defense set up in the answer of defendant upon which there were no findings. Section
In a defense set up as a third and separate defense on the part of defendant in its answer, it was alleged that the defendant did not, at the time of the shipment of the trunk, or at any time before the arrival of the trunk in Los Angeles, have any information or belief as to the contents of the trunk, or the value of the trunk; defendant then alleged: "That said charge for carrying said property was based upon a valuation not exceeding fifty dollars, and that the said plaintiffs agreed that the said defendant should not be liable in any event for more than fifty dollars for failure through any cause to deliver said trunk and contents to the plaintiffs in good order and condition, and that in case of partial loss or damage said defendant should not be liable for more than such a proportion of the same as fifty dollars bore to the actual value, if greater than fifty dollars." By this defense it was sought by defendant, in the event damages were recovered against it, to limit the amount of the recovery to fifty dollars. By the findings of the court it was determined that the amount of damage suffered was the sum of $300. No findings were made upon this third defense of the defendant. It seems to be settled, both by the code provisions and the decisions, that a valid contract may be made which will limit the amount of recovery in a case like this where a special rate is given for the carriage of property to the value agreed upon between the shipper and carrier (Larsen v. Oregon Short Line R. Co. (Utah), 110 P. 983; Civ. Code, sec.
As to the alleged fourth defense set out in defendant's answer, the findings as made sufficiently cover every issue tendered by it.
The judgment is reversed, with directions to the trial court to enter judgment upon the findings in favor of plaintiffs for the sum of $300.
Allen, P. J., and Shaw, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on January 11, 1911, and the following opinion rendered thereon:
THE COURT. — The petition of respondent for a rehearing is denied. Its contention that a new trial should have been ordered, rather than that a judgment should have been directed to be entered upon the findings, as was done, may be fully answered: The trial court failed to find upon the issue presented in the third alleged defense set out in defendant's answer as to a contract having been made between the shipper *797
and carrier limiting liability. It was not necessary for the court to make a finding upon any issue in support of which no evidence was offered, and it is not shown that there was evidence before the court touching the defense mentioned. It must be presumed where there is an absence of a finding upon an issue made by the pleadings that no evidence was offered or heard in support thereof when none is shown by the record to have been so offered or heard. Therefore, conceding that in the third alleged defense a contract limiting liability was sufficiently pleaded, nevertheless, upon the findings as made, it was proper for this court to make the order which was made directing judgment to be entered in favor of plaintiffs. (Eva v. Symons,
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 9, 1911.
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