Opinion
No. 188.
July 6, 1944.
Appeal from the Municipal Court for the District of Columbia, Civil Division, Small Claims and Conciliation Branch.
Justin L. Edgerton, of Washington, D.C., for appellant.
Gus D. Goldberg, pro se.
Before RICHARDSON, Chief Judge, and CAYTON and HOOD, Associate Judges.
Plaintiff below was a customer of appellant laundry and sued for the value of a damask orchid banquet cloth which the laundry had failed to return. The claimed value of the cloth was $50 and plaintiff recovered judgment for $17.50.
Failure to return the cloth made out a prima facie case of liability. Quinn v. Milner, D.C.Mun.App., 34 A.2d 259. The laundry did not deny liability, but contended at the trial, and repeats its contention here, that its liability should be limited to $2 because of the following circumstances.
The laundry has approximately 80,000 customers and currently has approximately 22,000 claims annually for lost articles. On April 1, 1943, it put into effect what it termed "maximum settlement conditions." This was done by supplying its customers with each bundle of laundry returned a laundry sheet for the next bundle. This sheet contains two lists, one to be enclosed with the laundry and the other to be retained by the customer. On the customer's list under the heading, "For Your Protection and Ours, Please read the Conditions Under Which Your Laundry Is Received," appears the following item:
"6 File claims promptly, enclosing laundry ticket. Adjustment will be made for actual loss only. Settlement limited to not more than ten (10) times list price laundering charge for any article. The following maximum settlements are listed:
Sheets ............................................. $1.25 Pillow Cases ....................................... .50 Hand Towels ........................................ .25 Bath Towels ........................................ .50 Large Table Cloths ................................. 2.00 Small Table Cloths ................................. 1.00 Napkins — Large ..................................... .50 Napkins — Small ..................................... .25 Wn. Cloths ........................................ .20 Shirts ............................................. 1.60 Handkerchiefs ...................................... .30 Socks per pair ..................................... .35"
In some instances the maximum settlement exceeds ten times the laundering charge. Thus, the laundering charge for a large tablecloth is 12 cents but the maximum settlement for such a cloth is $2 instead of $1.20. We are told that a banquet cloth is simply an extralarge tablecloth, and the charge for laundering is the same as for a large tablecloth.
That plaintiff was fully acquainted with the laundry's "maximum settlement" conditions can hardly be doubted. He had been a customer since November, 1942, and had made and received settlements for at least fifteen claims, a majority of which occurred between April 1, 1943 and November 11, 1943, the date the banquet cloth was delivered to the laundry. The claims were made on claim blanks furnished by the laundry and the blanks had printed on them the same settlement conditions which appeared on the laundry list. Settlement checks received by him in numerous instances, detailing the settlement for particular items, carried the notation: "Maximum payable." The laundry list made by plaintiff when the banquet cloth in question was delivered to the laundry was on the regular list furnished by the laundry and the claim for its loss was on a claim card likewise furnished by the laundry. Both contained the provisions relating to settlement.
We do not have here the question often presented in similar situations as to customer's knowledge of the limitation provisions prior to delivery of the articles. Cf. Red Cross Laundry v. Tuten, 31 Ga. App. 689, 121 S.E. 865; Cothren v. Kansas City Laundry Service Co., Mo. App., 242 S.W. 167. Here the terms of settlement had been brought directly to the customer's attention on various previous occasions. Plaintiff did not deny he was familiar with the settlement conditions, but stated that his previous claims had been settled to his satisfaction; and he admitted receiving in payment of a previous claim a voucher marked "maximum payable" and "conditions enclosed" accompanied by a copy of the settlement conditions.
The trial court recognizing that plaintiff was amply on notice held that such notice was not sufficient to create a contractual relationship binding plaintiff to the limitations imposed by the laundry. In this we think the court was in error. The authorities are generally in accord that if at the time the bailment is made the bailor has actual notice of certain terms which alter or modify the ordinary relationship implied by law, delivery of the property to the bailee amounts to an assent to these terms. Kravitz v. Parking Service Co., Inc., 29 Ala. App. 523, 199 So. 727, certiorari denied 240 Ala. 467, 199 So. 731; Jones v. Great Northern Railway Co., 68 Mont. 231, 217 P. 673, 37 A.L.R. 754; Dodge v. Nashville, C. St. L. Ry. Co., 142 Tenn. 20, 215 S.W. 274, 7 A.L.R. 1229.
It is argued by plaintiff that since the maximum settlements listed did not include the item of banquet cloth, there was no limitation of liability with respect to such an article, but this argument overlooks the general statement without reservation that settlement was limited to not more than ten times the laundering charge. It seems plain that the individual items listed were given by way of illustration and not intended to be all inclusive. It would hardly be practicable to list every possible article that might be sent to the laundry.
Plaintiff further argues that because of present war conditions he was compelled to trade with this laundry alone and accordingly had no choice in the matter, with the result that the limitation of liability was forced upon him and was not voluntarily accepted by him; and that such a limitation under the circumstances is contrary to public policy.
The laundry answers by saying its policy has always been to limit settlement as far as possible to ten times the laundering charge; that generally its maximum settlements are fair and reasonable and provide adequate compensation to the customer, as is evidenced by the fact that in the past year it settled over 20,000 claims and this is the first occasion when a claimant has resorted to court action; that its charges have been frozen by the O.P.A. while costs of wearing apparel and other articles of laundry have increased and it should not be compelled to pay increased replacement costs when its own charges are stationary; that due to present lack of experienced help losses, which it says are largely due to misdelivery of articles which customers fail to return, have increased, and with fixed charges it cannot successfully operate without some limitation of liability; that it has never included in its charges, as some laundries do, an extra charge in the nature of insurance; that its customers have been fully notified of its settlement conditions and if they do not wish to send laundry to it under these conditions they are free to take their laundry elsewhere; that there is nothing contrary to public policy in limiting liability in proportion to the charge collected and that such limitation is necessary to protect it from fraud and imposition as well as to enable it to survive under present conditions.
The effect of public policy on contractual exemptions from, or limitations of, liability, has been the subject of many cases involving common carriers. See Baltimore Ohio Southwestern Railway Co. v. Voigt, 176 U.S. 498, 20 S.Ct. 385, 44 L.Ed. 560; Santa Fe, P. P. R. Co. v. Grant Bros. Construction Co., 228 U.S. 177, 33 S.Ct. 474, 57 L.Ed. 787; Union Pacific R. Co. v. Burke, 255 U.S. 317, 41 S.Ct. 283, 65 L.Ed. 656. However, the strict liability imposed on common carriers does not extend to ordinary bailees and those cases are not in point with the present question. Cf. Primrose v. Western Union Telegraph Co., 154 U.S. 1, 14 S.Ct. 1098, 38 L.Ed. 883; Sun Oil Co. v. Dalzell Towing Company, Inc., 287 U.S. 291, 53 S.Ct. 135, 77 L.Ed. 311.
The relationship between the parties was that of bailment for mutual benefit and the law imposed on the laundry the duty to exercise ordinary care. Medes v. Hornbach, 56 App.D.C. 13, 6 F.2d 711; Fidelity Storage Co. v. Foster, 60 App.D.C. 277, 51 F.2d 439. Although some jurisdictions hold that a contract limiting a bailee's liability for its own negligence is contrary to public policy, it is settled in this jurisdiction that a bailee may limit his liability except for gross negligence, wilful act or fraud. Fidelity Storage Co. v. Kingsbury, 65 App.D.C. 69, 79 F.2d 705; Barrett v. Freed, D.C.Mun.App., 35 A.2d 180. There is no evidence here or claim made that the loss occurred through gross negligence, wilful act or fraud.
Unless there is some superior right in the public or experience demonstrates that protection of the individual is necessary, individuals have the right to contract on their own terms in respect to their private concerns and engagements. Determination of public policy is primarily a matter for the legislature (Twin City Pipe Line Co. v. Harding Glass Co., 283 U.S. 353, 51 S.Ct. 476, 75 L.Ed. 1112, 83 A.L.R. 1168); and since Congress has not seen fit to regulate the relations between laundries and their customers, this court should not assume the right to prescribe the terms upon which they may contract. The present situation in Washington is abnormal and Congress has enacted emergency legislation to meet some of the existing problems, but a court cannot make emergency decisions and restrict their effect to a time or condition. We cannot declare a public policy based upon a temporary extra-ordinary situation. In the absence of statute and in view of the holding by the highest court of this jurisdiction in Fidelity Storage Co. v. Kingsbury, supra, we cannot hold that it is contrary to any principle of public policy in this jurisdiction for a laundry to limit its liability for the articles entrusted to it.
With respect to appellee's claim that he was compelled to do business with this particular laundry and thus the limitations were forced involuntarily upon him, we may judicially recognize the existing difficulties in obtaining laundry service, as well as many other services; but we cannot assume, and it was not shown, that it was impossible for appellee to find another laundry willing and able to accept him as a customer. A glance at the number of laundries listed in the local telephone directory plainly shows nothing monopolistic in the business. There are numerous hand laundries furnishing special service at higher rates, especially catering to the handling of more expensive and unusual articles such as the cloth in question. If the plaintiff was not satisfied to do business with defendant on its terms which had been clearly brought to his attention, he should have gone elsewhere.
Appellee also contends that the establishment of the maximum settlement conditions was in effect a reduction of services and constituted a violation of O. P. A. maximum price regulation No. 165. No authority is cited for this proposition and the record contains no evidence from which we can determine its soundness.
Reversed.
I dissent, on the ground that the attempted limitation of liability is against public policy, inflationary, and repugnant to the Price Administration program.