Travelers Fire Insurance v. Brock & Co.

SHAW, J.

pro

tem.

This is an appeal by plaintiff from a judgment for defendant after trial by the court sitting without a jury. From the record it appears that plaintiff’s assignors, Joe and Mary Brandt, who were husband and wife, delivered to defendant, which was engaged in the jewelry-business, a diamond brooch from which a small stone had been lost, for the purpose of having it repaired by replacing the lost stone. Defendant, not having a diamond which would fit the brooch, delivered it to E. & I. Woorgaft & Company, a diamond dealer, which furnished a diamond and in turn delivered the brooch and the diamond to Julian Del Monte, a diamond cutter, in order for him to cut the diamond to fit the brooch. While the brooch was thus in Del Monte’s possession, it was stolen. Plaintiff, which had insured the Brandts against loss of the brooch, paid them its value, took an assignment of their claim against defendant, and brought this action to recover the value of the brooch from defendant.

The relation between the Brandts and defendant was, of course, that of bailor and bailee. Plaintiff’s principal contention on appeal is, that defendant violated the bailment

[390]

contract by sending the brooch to E. & I. Woorgaft & Company for repair instead of doing the work itself. In response to this contention, defendant invokes the doctrine of the “law of the ease.” Upon a former trial of this action a judgment was rendered in favor of plaintiff, from which the defendant appealed. On that appeal the District Court of Appeal reversed the judgment for error in excluding evidence offered by the defendant, the purport of which, other than that it did not relate to the terms of the bailment contract, is immaterial here, first announcing several rules of law as “governing” the case and then declaring that, “Applying the foregoing rules of law to the facts of the instant case . . . the offered evidence was material to an issue before the court and it was therefore prejudicial error to exclude the same.”

(Travelers Fire Ins. Co.

v.

Brock & Co.

(1938), 30 Cal. App. (2d) 112 [85 Pac. (2d) 905].)