NEVILLE v. ST FRANCIS HOTEL AND APARTMENTS (1936)

Defendants appeal from a judgment in favor of plaintiff after a trial before a jury.

Viewing the evidence most favorable to plaintiff (Ah Gett v. Carr, 3 Cal.App. 47, 48, 84 P. 458), the facts in the instant case are:

Plaintiff rented a furnished room from defendants, the owners and operators of the St. Francis Hotel. The room was equipped with a folding bed, which hung from a bracket on the floor and a bracket on the closet door jamb. The upper bracket was held by three heavy screws, each 31/414 inches long, screwed into the door jamb, and into two 2x4 timbers in the door frame.

January 29, 1935, plaintiff was lying in bed flat on her back when three screws which held the upper bracket to the door jamb broke, and the head and frame of the bed dropped on her face, causing her serious injury.

The causes of action alleged in the amended and supplemental complaint were:

Count 1. A breach of defendants' implied warranty that the bed was safe.

Count 2. Violation by defendants of an express warranty that the bed was safe and secure.

Count 3. Negligence on the part of defendants.

Defendants rely for reversal of the judgment on three propositions:

First. If a bailee has seen or inspected the subject of a bailment, the law does not imply a warranty on the part of the bailor as to the reasonable fitness or capability of the chattel.

Second. Defendants did not expressly warrant the folding bed to be safe and free from latent defects.

Third. A motion for a nonsuit having been granted to the third cause of action alleged in the supplemental and amended complaint, the judgment could not properly be predicated on negligence of the defendants.

As to defendants' first proposition, if the bailee has inspected the object of the bailment, the law does not imply a warranty that it is reasonably fit or capable for the purposes for which the bailee intends to use it. Briggs v. Hunton, 87 Me. 145, 32 A. 794, 47 Am.St.Rep. 318; Gaffey v. Forgione & Romano Co., 126 Me. 220, 137 A. 218; 31 A.L.R. 544. In the instant case the uncontradicted evidence disclosed that plaintiff prior to renting the room from defendants inspected the folding bed which subsequently caused her injury. Therefore the jury could not have properly returned a verdict based on the first cause of action alleged in the supplemental and amended complaint.

The second proposition presented by defendants is tenable. The evidence which plaintiff relies upon in support of her claim that there was an express warranty of the safety and fitness of the bed was the following conversation educed at the trial between the defendants' manager, Mr. Walsh, and plaintiff prior to the renting of the room:

“Q. What was the conversation? A. When I spoke about the apartment, the folding bed, I said it is a very lovely apartment but I never did care for any folding beds. * * *

“Q. Say just what you were saying in this conversation. A. Yes. And he motioned to me–it was in the living room–and he motioned to me and he said come here, I'll show you. We went into this closet where this bed was folded in and he started to take the–lift up the covers which he did–I said you don't need to bother–when he said he was going to show me the box spring mattresses on the bed and I said, yes, it is different than the other beds I have had and he said, you won't have any trouble with it at all, and just as safe and comfortable as any bed I ever had or slept in. I would not have any trouble in sleeping.”

The statements contained in the conversation above related were clearly nothing more nor less than expressions of opinion by Mr. Walsh and casual statements ordinarily to be expected from a hotel manager in displaying his rooms to a prospective guest. Steen v. Southern California Supply Co., 74 Cal.App. 265, 239 P. 1098; Williams v. Lowenthal, 124 Cal.App. 179, 12 P. (2d) 75.

The final proposition presented by defendants is correct. Plaintiff has not appealed from the order granting defendants' motion for a nonsuit to the third cause of action in the supplemental and amended complaint. Therefore this order has become final and the judgment could not be predicated on negligence of the defendants.

The complaint and amendment thereto in the case of Fisher v. Pennington, 116 Cal.App. 248, 2 P.(2d) 518, relied upon by plaintiff as decisive of the instant case, discloses that each cause of action was based on the theory of negligence. The case is thus clearly distinguishable from the one now before this court.

The foregoing conclusions make it unnecessary to consider the other points discussed in the briefs. However, we are constrained to compliment counsel on both sides for the very careful and clear presentation of the points of law involved.

The judgment is reversed.

McCOMB, Justice pro tem.

I concur: CRAIL, P. J. I dissent: WOOD, J.