Travelers Fire Insurance Co. v. Brock & Co.

California Court of Appeal Dec 22, 1938 No. Civ. 11982Published

Before: McCOMB

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Holding. The trial court committed prejudicial error by excluding evidence offered by the defendant bailee to prove that the loss of the bailed property occurred through theft despite the exercise of ordinary care. A bailee for hire is not an insurer and may avoid liability by proving the loss occurred without negligence on its part or that of its sub-bailee.

Issues

Did the trial court err in excluding evidence that the bailee exercised ordinary care and that the property was lost by theft?
Is a bailee for repairs liable for the loss of property if the loss occurred without negligence on the part of the bailee or its sub-bailee?

Disposition. reversed

Quotations verified verbatim against the opinion

“The burden of proof rests with the bailee to prove, where the bailed property is not returned to the bailor, that the property was lost by theft, etc., without negligence of the bailee.”

“He is not an insurer of the chattel entrusted to him and is not liable for loss resulting from robbery, burglary, or theft.”

“the offered evidence was material to an issue before the court and it was therefore prejudicial error to exclude the same.”

McCOMB, J.

From a judgment in favor of plaintiff after trial before the court without a jury in an action to recover the value of a brooch which it is alleged defendants converted defendants appeal.

The essential facts are:

Plaintiff’s assignor, Mrs. Mary Brandt, delivered to defendant Brock and Company, who was engaged in the jewelry business, a diamond brooch from which one of the small diamonds had been lost and requested said defendant to replace it. Defendant Brock and Company delivered the brooch to E. and I. Woorgaft & Company to supply a diamond, who in turn delivered the brooch with a diamond to Julian Del Monte, a diamond cutter, for the purpose of cutting in the diamond to fit the brooch. Mr. Del Monte placed the brooch in a locked container in his safe. The following morning he found that the brooch, together with other merchandise belonging to him, had been stolen from the safe. Plaintiff had insured Mrs. Brandt against the loss of her property and thereafter paid her the sum of $2,500, took an assignment of her claim against defendant, and brought the present action to recover the value of the brooch.

This is the sole question to be determined:

Did the trial court commit prejudicial error in sustaining an objection to defendant’s offer to prove that the reputation of E. and I. Woorgaft & Company and Julian Del Monte at the time the diamond brooch was delivered to them was such that it would cause no apprehension on defendant’s part that the brooch would not be kept and maintained in a safe place; that Mr. Del Monte placed the diamond brooch in a locked container within his safe, closed, and locked three successive doors in the safe; and that the brooch was taken from the safe together with other merchandise of Mr. Del Monte by unknown

persons?

[114]

This question must he answered in the affirmative and is governed by the following established principles of law:

(1) The burden of proof rests with the bailee to prove, where the bailed property is not returned to the bailor, that the property was lost by theft, etc., without negligence of the bailee.

(U Drive & Tour, Ltd.,

Travelers Fire Insurance Co. v. Brock & Co.

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