Gardner v. Jonathan Club , 35 Cal. 2d 343 ( 1950 )

CARTER, J.

I dissent.

I disagree with the result reached by the majority of this court. In order to reach that result, the majority hold that the “B” check is not a receipt in writing as contemplated by the provisions of section 1860 of the Civil Code.

Assume for the moment that the “A” cheek had been filled in properly with the amount deposited, the date, signature of depositor and the .agent of the defendant who received it, and that it was entirely in order. The “B” cheek was detached from the envelope which comprised the “A” check and was given to the bailor. It was not within the contemplation of the parties that this check would be filled in until the depositor had received that which he had left for safekeeping with the bailee club, that is, the envelope containing the subject matter of the bailment. If the “A” check had been properly filled in, and if the depositor had actual knowledge of the contents of the envelope, would the bailee have given any different kind of receipt? The majority hold that the “B” cheek is not such a receipt “in writing” as is contemplated by section 1860 of the Civil Code. The absurdity of this is patent to anyone who has had experience in depositing valuables with a hotel for safekeeping. My experience has been that the bailee who is cognizant of his duties will inquire as to the value of the article bailed, will then place it in an envelope of the proper size, and detach a receipt like the one in the instant case, and then give the receipt to the bailor. The code section makes no provision for any particular' form of receipt. As was pointed out in Providence W. Ins. Co. v. Hotel Marysville, 60 Cal.App.2d 338, 348 [140 P.2d 698], section 14 of the Civil Code provides that “writing includes printing and typewriting. ’ ’

In the Providence W. Ins. Co. v. Hotel Marysville case, supra, it clearly appears that the plaintiff was given a brass check with which to claim his sample cases. It also there appears that plaintiff knew that the hotel had envelopes with the same type of check attached as the “B” check here and which he might make use of if he desired to impose greater liability upon the innkeeper. It would seem that it should be very apparent to everyone that the “B” check was the only type of receipt within the contemplation of the parties, and that no other type of receipt would have been given in any event. Under the majority holding, no bailor may recover more than $250 for property of whatever value unless he demands something equivalent to an affidavit from the bailee.

The majority opinion states that “It bears emphasis that section 1860 does not guarantee a minimum recovery of $250 in every case in which property deposited in a hotel safe is lost. Section 1840 limits the liability of the depository to the amount it ‘is informed by the depositor, or has reason to suppose, the thing deposited to be worth. ’ ” Section 1840 reads in full as follows: “The liability of a depositary for negligence cannot exceed the amount which he is informed by the depositor, or has reason to suppose, the thing deposited to be worth.” [Emphasis added.] Thus, it is only where the loss is occasioned through negligence that section 1840 applies. In the instant case, the plaintiff was precluded, because the motion for summary judgment was granted, from a trial on the merits. The defendant, as depositary, was under a duty to account for its failure to return the goods. (George v. Bekins Van & Storage Co., 33 Cal.2d 834 [205 P.2d 1037]; Cussen v. Southern California Sav. Bank, 133 Cal. 534 [65 P. 1099, 85 Am.St.Rep. 221]; 13 So.Cal.L.Rev. 164.)

I am of the opinion that a summary judgment was improper in that a triable issue was presented, that is, whether the “B” check constituted a receipt in writing as contemplated by section 1860 of the Civil Code (United States Fidelity & Guar. Co. v.. Sullivan, 93 Cal.App.2d 559, 561 [209 P.2d 429]), and the judgment should be reversed.