Cushman v. Cliff House

CASHIN, J.

An action to recover the value of personal property from defendants as bailees, the plaintiffs alleging in two counts, first, the violation of a contract of bailment by failure to redeliver on demand, and, second, a conversion of the property, these allegations being denied by defendants.

The cause was tried by a jury and a verdict for the defendants returned. Following the entry of judgment thereon plaintiffs moved for judgment notwithstanding the verdict, and for a new trial, both motions being denied. Appeals were taken from the order denying the first motion and from the judgment, and are presented on the judgment-roll with a bill of exceptions.

Appellants urge as grounds for reversal the denial of the motion first mentioned, the insufficiency of the evidence to sustain the verdict, rulings of the trial court on the admissibility of evidence, and the giving and refusing of certain instructions.

Defendant Roberts at all the times mentioned2 in the complaint was the proprietor of a restaurant in the city of San Francisco known as the Cliff House; and defendant Land-man, by agreement with the former, conducted a checkroom adjoining the restaurant, which was in charge of the latter’s employee, whose duty it was to receive the hats and coats of the patrons of the restaurant; to give a check therefor as a means of identification, and to redeliver the article deposited on presentation of the check, no specific charge for the service being made.

It was alleged and testified by plaintiff, Helen H. Cushman, that on the evening of December 31,' 1923, she, in company with her husband and others, visited the restaurant mentioned, where they spent the evening; that she deposited her coat—in the pockets of which were two pairs of gloves—■ in the checkroom; received from the attendant in charge a check therefor, and that later the check was presented and demand made for her property, which defendants failed to

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deliver. Her testimony was corroborated by the persons who accompanied her on this occasion. As shown by the testimony, a large number of persons were present, and it does not appear that the defendants or their employees were personally acquainted with said plaintiff, or that a means of identifying property deposited in the checkroom was provided other than the checks issued therefor. One of such checks was offered in evidence and bore on its face the following: ‘ ‘ 54— Cliff House. Not responsible for lost articles unless claim is made before leaving,” and on the reverse side: “Phone Pacific 8140. Pacific Auto Service, Fred L. Landman. Notify hat checker. Immediate service. ’ ’