KUCHINSKY, Appellant, v. EMPIRE LOUNGE, INC., Respondent.

*449 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.

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, *450 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.

*451 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.

G.R. No. L-6 November 14, 1901

MANUEL GARCIA GAVIERES, plaintiff-appellant,

vs.
T.H. PARDO DE TAVERA, defendant-appellee.

E.M. Llanos, for appellant.

Simplicio del Rosario, for appellee.

COOPER, J.:

The present appeal has been interposed in the declarative action of greater import filed
in the Court of First Instance of Tondo, commenced on January 10, 1900, by Don
Manuel Garcia Gavieres as plaintiff and successor in interest of the deceased Doña
Ignacia de Gorricho against Don Trinidad H. Pardo de Tavera as universal heir of the
deceased Don Felix Pardo de Tavera for the collection of a balance of 1,423 pesos 75
cents, remaining due on an original obligation of 3,000 pesos which, as the plaintiff
alleges, was the amount of a deposit delivered by Doña Ignacia Gorricho, deceased, to
Don Felix Pardo de Tavera, deceased, on the 31st day of October, 1859. The
agreement between the parties appears in the following writing:

Received of Señorita Ignacia de Gorricho the sum of 3,000 pesos,

gold (3,000 pesos), as a deposit payable on two months' notice in
advance, with interest at 6 per cent per annum with an hypothecation
of the goods now owned by me or which may be owned hereafter, as
security of the payment.

In witness whereof I sign in Binondo, January 31, 1859. lawphil.net

FELIX PARDO DE TAVERA.

The defendant answering complaint of plaintiff alleges among other things as a defense,
that the document upon which the complaint is based was not a contract of deposit as
alleged in the complaint, but a contract of loan, and setting forth furthermore the
payment of the original obligation as well as the prescription of the action. The
defendant contends that the document upon which the action is based is not evidence
of a deposit, as the plaintiff maintains, but of a contract of loan, and that the prescription
applicable to loans has extinguished the right of action. Although in the document in
question a deposit is spoken of, nevertheless from an examination of the entire
document it clearly appears that the contract was a loan and that such was the intention
of the parties. It is unnecessary to recur to the canons of interpretation to arrive at this
conclusion. The obligation of the depositary to pay interest at the rate of 6 per cent to
the depositor suffices to cause the obligation to be considered as a loan and makes it
likewise evident that it was the intention of the parties that the depositary should have
the right to make use of the amount deposited, since it was stimulated that the amount
could be collected after notice of two months in advance. Such being the case, the
contract lost the character of a deposit and acquired that of a loan. (Art. 1768, Civil
Code.)

All personal actions, such as those which arise from a contract of loan, cease to have
legal effect after twenty years according to the former law and after fifteen years
according to the Civil Code now in force. The date of the document is January 31, 1859.
The proof of payment in support of the defense we consider likewise sufficient to
establish such defense. The document dated January 8, 1869, executed by Don Felix
Garcia Gavieres, husband and legal representative of Doña Ignacia Gorricho,
acknowledges the receipt of 1,224 pesos from Don Manuel Darvin, representative of the
deceased Don Felix Pardo de Tavera. This sum is declared in said document to be the
balance due upon the debt of 2,000 pesos. This was slightly more or less the amount
which remained as due upon the original obligation after deducting the payment which
are admitted to have been made. In the absence of evidence disclosing that there were
other claims in favor of Gavieres it is reasonably to be supposed that this payment was
made to satisfy the balance due upon the original obligation.

The original contract between the parties was celebrated nearly a half century ago; the
contracting parties have ceased to exist long since; it may be that there exists or may
have existed documents proving a total payment between the parties and that this
document has some time ago suffered the common fate of perishable things. He who by
laches in the exercise of his rights has caused a failure of proof has no right to complain
if the court does not apply the strict rules of evidence which are applicable in ordinary
cases, and admits to a certain extent the presumption to which the conduct of the
interest party himself naturally gives rise.

It is our opinion that the judgment of the Court of First Instance should be affirmed, and
it is so ordered, with costs of appeal taxed against the appellant.