Opinion
April 1, 1965 —
April 27, 1965.
APPEAL from a judgment of the county court of Milwaukee county: MARVIN C. HOLZ, Judge. Affirmed.
For the appellant there were briefs and oral argument by S. A. Schapiro of Milwaukee.
For the respondent there was a brief and oral argument by Wayne E. Rowlee of Milwaukee.
Action by plaintiff, Thomas J. Kuchinsky, against defendant, Empire Lounge, Inc., to recover damages for the wrongful taking of plaintiff's overcoat, gloves, and keys, while plaintiff was a customer in defendant's cocktail lounge.
Plaintiff's complaint alleged two causes of action. The allegation of the first cause of action was that on January 5, 1963, while plaintiff was on defendant's premises as an invitee plaintiff delivered to defendant for safekeeping his overcoat, gloves, and keys, to be safely kept and redelivered to plaintiff on demand; that defendant received such property upon such conditions; and that defendant failed to deliver back said property to plaintiff on demand because the same had been lost through the negligence and carelessness of defendant's employees. The second cause of action alleged that plaintiff's overcoat, gloves, and keys had been wrongfully taken while plaintiff was a business invitee of defendant and that such wrongful taking was due to the negligence of defendant; and defendant's negligence consisted of the following:
(1) It failed to control and manage the conduct of its patrons therein;
(2) It failed to adequately protect the interests of its business invitees;
(3) It failed to exercise that degree of care imposed upon it as a business invitor.
The defendant's answer denied the allegations of bailment set forth in the first cause of action of plaintiff's complaint, and also denied all allegations of negligence contained in both the first and second causes of action.
The action was tried to the court without a jury. The county court in addition to filing a memorandum decision also made and filed findings of fact and conclusions of law. Such findings of fact are as follows:
"Findings of Fact.
" First. That the plaintiff, his wife and another couple were in the Defendant's establishment on the morning of January 6, 1963 at or about 3:00 A. M.
" Second. That there was only one waitress working on the morning in question.
" Third. That the Plaintiff and his party passed the coat tree as they took their seats and that it was twenty feet from where they sat and in view of at least one of the parties as they were seated.
" Fourth. That when the lounge closed at about 3:30 A. M. the Plaintiff went to the tree to get his coat and found that it was not there.
" Fifth. That the Plaintiff was at complete liberty to retreive [sic] his coat from the tree without requesting such from the waitress.
" Sixth. That no signs were posted on the premises warning the invitees to watch their coat or stating that the management would not be responsible for losses.
" Seventh. That the Defendant had no employees whose duties were exclusively to safeguard or protect the garments of the patrons or whose duties included the protecting or safeguarding of the garments of the patrons as part of their duties.
" Eighth. That the only facility Defendant provided for the patrons to leave their garments were coat trees in the bar area about five feet from the entrance to the premises."
The conclusions of law determined that no bailment had been established and that there was no negligence on the part of defendant and judgment was directed dismissing the complaint upon its merits.
Judgment was entered December 29, 1964, which dismissed the complaint on the merits together with costs. Plaintiff has appealed.
In the absence of a transcript our review is limited to the question of whether the pleadings, decision, findings, and conclusions sustain the judgment. Estate of Reynolds (1964), 24 Wis.2d 370, 374, 129 N.W.2d 251.
Appellant plaintiff has raised no issue on this appeal with respect to the trial court's determination that no bailment existed. Thus the issue before us is whether, under the facts as found by the trial court, defendant cocktail-lounge operator, was negligent as a matter of law.
A case very much in point is Montgomery v. Ladjing (1899), 30 Misc. 92, 61 N.Y. Supp. 840. There the plaintiff entered the restaurant kept by the defendant with a party of friends; he removed his overcoat and hung it on a hook affixed to a post near the table at which he seated himself; the attention of neither the defendant nor of any of his employees was called to the coat in any way; and fifteen minutes later the coat was missing. The court held that the plaintiff had wholly failed to show failure on the part of the defendant to exercise ordinary care, and declared ( 30 Misc. at p. 96):
"The rule to be deduced from all these cases, therefore, is: That, before a restaurant keeper will be held liable for the loss of an overcoat of a customer while such customer takes a meal or refreshments, it must appear either that the overcoat was placed in the physical custody of the keeper of the restaurant or his servants, in which case there is actual bailment, or that the overcoat was necessarily laid aside under circumstances showing at least notice of the fact and of such necessity to the keeper of the restaurant or his servants, in which case there is an implied bailment or constructive custody, or that the loss occurred by reason of the insufficiency of the general supervision exercised by the keeper of the restaurant for the protection of the property of customers temporarily laid aside."
In National Fire Ins. Co. v. Commodore Hotel (1961), 259 Minn. 349, 107 N.W.2d 708, the plaintiff was a guest at a luncheon held at the defendant's hotel. She hung her mink jacket in an unattended cloakroom on the main floor across from the lobby desk. After the luncheon and ensuing card party the plaintiff went to the cloakroom to retrieve her jacket and discovered it was gone. The court held that no negligence had been established against the defendant and stated ( 259 Minn. at pp. 353, 354):
". . . In any event, we do not feel that it is incumbent upon a hotel or restaurant owner to keep an attendant in charge of a free cloakroom for luncheon or dinner guests or otherwise face liability for loss of articles placed therein. The maintenance of such rooms without attendants is a common practice, and where the proprietor has not accepted control and custody of articles placed therein, no duty rests upon him to exercise any special degree of care with respect thereto.
"Likewise, failure to post a warning disclaiming responsibility would not seem to constitute negligence when, as here, a guest is aware that a cloakroom is unattended, adjacent to the lobby, and accessible to anyone, and has used it under similar circumstances on many prior occasions. The absence of such warning signs does not appear to have been material in a number of decisions absolving proprietors from liability, although when posted they appear to be regarded as an added factor in establishing such nonliability."
See also annotation, "Liability for loss of hat, coat or other property deposited by customer in place of business," 1 A.L.R.2d 802.
Under the foregoing authorities we conclude not only do the findings of fact and conclusions of law support the judgment, but also that these findings would not support a judgment in favor of plaintiff.
Defendant has requested the imposition of double costs against plaintiff because of alleged flagrant violation of our rules. The most serious of these rule infractions was plaintiff's failure to print in its appendix the trial court's memorandum decision, findings of fact, conclusions of law, and judgment. If it were not for the fact that plaintiff's counsel has been less than a year in practice and this is his first supreme court appeal we would grant the request for double costs. It is incumbent even upon the neophyte lawyer to familiarize himself with the rules of practice of this court set forth in ch. 251, Stats., before drafting his brief and appendix.
By the Court. — Judgment affirmed.