Home Insurance v. Los Angeles Warehouse Co.

WOOD, J. Plaintiff appeals from a judgment of non-suit. Plaintiff’s assignor, Coca Cola Company, stored 42,645 bags of sugar in the warehouse conducted by defendant on the premises designated as 316 Commercial Street and 324 North San Pedro Street in the city of Los Angeles. A fire occurred in the warehouse on August 4, 1930, and the sugar was damaged. Some of the bags were totally destroyed and the balance delivered to plaintiff’s assignor in a damaged condition. Plaintiff’s complaint is in three counts, the first being for conversion, the second charging negligence on the part of defendant-in storing fireworks in close proximity to the sugar and the third count charging that defendant permitted a nuisance to be maintained on that- part of- the premises that had been leased to the owner of the fireworks. Defendant denied the allegations of the complaint and pleaded the failure of plaintiff’s assignor to present a written claim of loss or damage within thirty days after delivery of the sugar from the warehouse. At the trial plaintiff presented proof concerning the storage of the sugar and the fireworks and the cause of the fire. The parties entered into a written stipulation covering many of the facts, including the stipulation that neither plaintiff nor its assignor presented a claim in writing for loss or damage within thirty days or at any time prior to the date of the commencement of the action, February 3, 1933. It was also stipulated that at the time of the storage of the sugar plaintiff’s assignor received from defendant a negotiable warehouse receipt in which defendant acknowledged receipt of the sugar “subject to all the terms and conditions contained herein and on the reverse hereof”. On the reverse side of the receipt the following appears: “These goods are stored and handled subject to the rules, regulations, rates and charges as published in our warehouse schedules, on file with the Railroad Commission of California [739]and in our office, and such amendments thereto as may hereafter be filed.” Paragraph IX of the stipulation provides in part as follows: “That prior to the storage of any of said sugar in said warehouse, and on or about the 7th day of June, 1928, the defendant Los Angeles Warehouse Company filed with the Railroad Commission of the State of California and in the form designated by the said Commission as provided by Section 14, Subdivision b, of the ‘Public Utilities Act’ of the State of California, a schedule showing all rates, charges and classifications for the storage of goods, wares and merchandise in its said warehouse, together with all rules, regulations, privileges and facilities which in any manner affected or related to such rates, charges or services. That said defendant Los Angeles Warehouse Company caused said schedule to be printed and kept the same open to public inspection in its office at said warehouse on the premises designated by the street number 316 Commercial Street, in the City of Los Angeles; that the said schedule is entitled ‘Warehouse Tariff No. 7-A’, and had been printed and was kept open to public inspection in said defendant’s office at all times since the 7th day of June, 1928, including the period from July 8th, 1929, to July 26th, 1930, both dates inclusive, when the. said sugar was delivered by said Coca Cola Co. for storage in defendant’s said warehouse. That the said ‘Tariff No. 7-A’ is the tariff referred to in the warehouse receipts mentioned in Paragraph IV of this stipulation, and that the rules and regulations contained and set forth in said Warehouse Tariff No. 7-A contain, among other things, the following provisions: ... As a condition precedent to recovery, claims for loss or damage must be made in writing within thirty days after the merchandise is delivered from warehouse, or, in the case of failure to make delivery, then within thirty days after delivery of the last package of the lot in warehousemen’s apparent possession.” Plaintiff did not present any evidence to excuse its failure to present a written claim within the thirty days specified.