Constantian v. Mercedes-Benz Co.

THE COURT.

This appeal is taken by the defendant from a judgment for the value of property rented to it by the plaintiffs and destroyed by fire admittedly without fault or negligence upon the part of the defendant.

The trial court found that plaintiffs, doing business under the name of Constantian Bros., rented to the defendant corporation on or about January 10, 1929, for 60 days, one oriental carpet, settee, table and statue, to be used in its display room only; that defendant assumed the risk and agreed to be responsible for any loss or- damage to such personal property or any part thereof while in its possession and to pay a rental of $150; that without the knowledge or permission of plaintiffs, defendant moved the rented property to its exhibit in the automobile show on March 1, 1929; that, on or about March 2d, the defendant rented from the plaintiffs three other oriental rugs for use in its exhibit, agreeing to pay an additional rental of $37 therefor, and assumed the risk and agreed to become responsible for any loss or damage while in its possession; that, without fault or negligence on the part of the defendant, the property was wholly destroyed by fire; that the value of the property was $2',675; that there was paid as rental the sum of $75, leaving a balance due of $112. Judgment was rendered for $112, unpaid rental, and $2,675, value of the property destroyed, with interest on the total ($2,878) from March 11, 1929, until paid. No question is raised on this appeal

as to

the amount of rent found due and unpaid or the value of the lost property

[633]

as found by the court. Appellant’s contention is that as bailee for hire it is not liable for the value of the goods destroyed during the bailment without its fault or negligence, that it did not by the contract of hiring assume a larger responsibility and that the finding that it agreed to be responsible for any loss or damage to the goods while in its possession is unsupported by the evidence.

The property was rented on three different occasions, the transactions being represented by three sets of duplicate delivery sheets, exhibits 1, 3 and 5 being the white originals, and exhibits 2, 4 and 6 the yellow duplicates. These sheets bore at the top the name and address of Constantian Bros, and a serial number. On each was filled in the name of Mercedes-Benz Company, the date, the term of the hiring, the number, description and value of the articles and the rental. At the bottom of the sheet appeared the printed condition “renters responsible for loss or damage of goods while in their possession”. Exhibits 1 and 2 bear the signature “Mercedes Benz Co. by Zier”, and cover one rug, the settee, table and statue. Zier was a salesman in the employ of the defendant. The date of this transaction is January 10, 1929, and the term is therein stated to be 60 days. With regard to these articles the court found, and its finding is supported by the testimony of' Arzivian, manager of the plaintiffs ’ rental department, that they were to be used in plaintiffs’ shoiv room only and were not to be taken to the automobile show. This testimony of Arzivian is flatly contradicted by Smith, defendant’s manager, but, the trial court having resolved the conflict in favor of the plaintiffs, the finding cannot be disturbed upon appeal. AVith respect to these articles, therefore, the defendant improperly removed them from the premises on which they were to be kept under the terms of the contract of hiring and is consequently responsible for their loss. (Civ. Code, sec. 1930.)