Ward v. System Auto Etc. Garages

149 Cal.App.2d Supp. 879 (1957) H. M. WARD, Respondent,

v.

SYSTEM AUTO PARKS AND GARAGES, INC., Appellant.

California Court of Appeals.

Mar. 28, 1957. Thomas D. Mercola for Appellant.

Virgil R. Wells for Respondent.

BISHOP, P. J.

Judgment was entered for $271.16 in this action in which the plaintiff sought to recover the amount that he had expended for repairs to his automobile, necessitated by careless handling of the car during the time that it was left with the defendant. [1] The defendant appeals, relying upon the fact that the action was brought more than three months after the damage was done, and so after it was barred by the terms of the written contract of bailment set forth in haec verba in the answer. The trial court found "that the purported 'contract' set forth in said Affirmative defense was never entered into by any of the parties herein; that plaintiff's automobile was parked and stored under an implied contract of bailment. ..." We are reversing the judgment because the trial court was not at liberty to make any such finding; that beyond dispute the bailment was under a written contract which contained the provision limiting the period for bringing an action to three months.

[2] We note, preliminarily, that contracting parties may agree upon a shorter period of limitation for bringing an action than that prescribed by statute, so long as the time allowed is reasonable (Tebbets v. Fidelity & Casualty Co. (1909), 155 Cal. 137, 138- 139 [99 P. 501]; Beeson v. Schloss (1920), 183 Cal. 618, 622-624 [192 P. 292]; Olds v. General Acc. Fire etc. Corp. (1945), 67 Cal.App.2d 812, 817 [155 P.2d 676]). [149 Cal.App.2d Supp. 881] [3] Three months has been approved (see references in Beeson v. Schloss, supra, 183 Cal. 624 [192 P. 292]), and we are unwilling to state that, as a matter of law, it is unreasonably short under the circumstances of this case.

In its "Second, Separate and Affirmative Defense" the defendant set forth at length that which it termed a contract in writing. These words of introduction preceded the contract: "[as alleged by the plaintiff he] brought into the premises of the defendant ... that certain 1954 Lincoln automobile, at which time and place Plaintiff left his said automobile with said Defendant under a contract in writing, in words and figures as follows:" In a succeeding, separate and affirmative defense the defendant alleged that if plaintiff parked his automobile with the defendant, as he claimed in his complaint, "the same was parked and stored under and by virtue of a contract, in writing, between Plaintiff and this answering Defendant, as set forth in the Second Affirmative Defense of this Answer and by this reference is incorporated herein."