Hammett v. New Orleans Diamond & Jewelry Wholesalers, Inc.

580 So. 2d 1077, 1991 La. App. LEXIS 1460, 1991 WL 88763
Louisiana Court of Appeal·Decided May 30, 1991·No. No. 90-CA-1226·Published·Cited by 2 cases

Opinion

CIACCIO, Judge.

Plaintiffs, Donald and Carey Hammett, filed suit against New Orleans Diamond and Jewelry Wholesalers, Inc. and United Parcel Service, Inc. (U.P.S.) for damages caused when plaintiffs’ jewelry was lost during shipment. U.P.S. was dismissed from the suit on motion for summary judgment, and following a trial on the merits, the trial court granted judgment in favor of defendant, New Orleans Diamond, dismissing plaintiffs’ suit. Plaintiffs appealed this judgment, claiming that the trial court erred in four ways: 1) in not finding New Orleans Diamond and U.P.S. liable in solido for the loss of the jewelry, 2) in not finding New Orleans Diamond negligent, 3) in failing to award damages for mental anguish, and 4) in assigning a value of only $2,000.00 to the lost jewelry. For the following reasons, we affirm in part and reverse in part the trial court judgment.

FACTS

In May of 1983, Carey Hammett brought several pieces of jewelry to defendant’s place of business for repair. Mrs. Hammett testified that approximately fifteen pieces of jewelry were left with defendant, including a bracelet, a ring and an earring. Defendant alleges that Mrs. Hammett only brought two items, a bracelet and a ring, to the store for repair. New Orleans Diamond could not do the necessary repair work on these items as it entailed the replacement of stones, so plaintiffs’ jewelry was shipped via U.P.S. to a lapidary in New York for repair. Apparently, the jewelry was lost in shipment as it never arrived at its place of destination in New York. After telephoning defendant several times to inquire about her jewelry, Mrs. Hammett went to New Orleans Diamond in September of 1984 to re-claim the pieces whether they were repaired or not, and was informed at this time that her jewelry had been lost.

Plaintiffs originally filed suit in Civil District Court to recover for the loss of this jewelry against New Orleans Diamond alone, claiming that the ring, bracelet and earring were worth $7,550.00. New Orleans Diamond answered and asserted a third party demand against U.P.S. Plaintiffs then amended their petition to add U.P.S. as a defendant and assert the value of the three pieces of jewelry was $22,-650.00 at the time of the loss. The amended petition also included a claim for mental anguish suffered by plaintiffs as a result of the loss.

U.P.S. filed a petition for removal alleging that plaintiffs’ claim for damages for the loss of property shipped by a common carrier was governed by federal law. The matter was removed to the U.S. District Court for the Eastern District of Louisiana and docketed as number 85-1571. U.P.S. then filed a motion for summary judgment, which was granted by the federal district court on November 26, 1985, dismissing plaintiffs’ claims against U.P.S.

On December 2, 1985, the case was returned to state court due to lack of grounds for federal jurisdiction, and the matter was referred to the Office of the Commissioner. Plaintiffs’ claims against New Orleans Diamond were tried before Commissioner Charles Rivet on October 9, 1987.

After the completion of trial, the Commissioner issued a report dated October 22, 1987 recommending judgment in favor of New Orleans Diamond. Plaintiffs filed exceptions to the report which were overruled, and the Commissioner’s recommendation was made judgment of the court on January 24, 1990. It is from this judgment that plaintiffs now appeal.

In its report, the Commissioner found that the evidence indicated that the loss of plaintiffs’ jewelry was caused solely by the failure of U.P.S. to deliver it and that New Orleans Diamond could not be held responsible for acts of negligence which occurred while plaintiffs’ jewelry was in the possession of U.P.S. We disagree.

SOLIDARY LIABILITY

Plaintiffs claim that New Orleans Diamond and U.P.S. were solidarily liable for [1080]*1080the loss of their jewelry. The Commissioner found that only U.P.S. was responsible for the jewelry which was lost in its possession. It is undisputed that New Orleans Diamond accepted plaintiffs’ bracelet and ring and transferred it to U.P.S. for shipment. Although the evidence of whether Mrs. Hammett authorized the shipment of her jewelry via U.P.S. is conflicting, both New Orleans Diamond and U.P.S. were bound to act as prudent adminstrators in safeguarding plaintiffs’ property.

When one depositary accepts the property of another, delivers that property to another for repair and the property is lost while in the possession of the repairer, both parties have the burden of exonerating themselves from the presumption of fault or negligence. When the codepositar-ies fail to do so, they are solidarily liable to the owner. Freeman v. Garcia, 495 So.2d 351 (La.App. 2 Cir.1986).

We find that U.P.S. should be held to the same standard of care as a codepositor. There is no evidence in the record to show that U.P.S. was exonerated from fault for the loss of the jewelry. Therefore, we find that New Orleans Diamond was solidarily liable with U.P.S. for the failure to return plaintiffs’ jewelry, and New Orleans Diamond is obligated for the loss of the jewelry even though it occurred while in the possession of U.P.S. The trial court was clearly wrong in failing to find these defendants solidarily liable.

NEGLIGENCE OF NEW ORLEANS DIAMOND

In addition, we find that the trial court’s conclusion that New Orleans Diamond was free from negligence to be manifestly erroneous.

Under LSA-C.C. Art. 2937, a depositary has the duty to use the same diligence in preserving the deposit that he uses in preserving his own property. However, this is not to mean that if he is careless in preserving his own property, he may also be careless, without liability, in preserving the deposit. Home Insurance Co. v. Southern Specialty Sales Co., 225 So.2d 776 (La.App. 4th Cir.1969). Rather, the depositary’s obligation is to act as a prudent administrator in safeguarding the deposited property. Once the depositor proves the existence of the deposit and the loss, there is a presumption the depositary has not fulfilled his obligation and the depositary must prove as an affirmative defense that he acted as a prudent administrator. Mercer v. Columbia Equipment Company, Inc., 409 So.2d 1285 (La.App.2d Cir.) writ denied 413 So.2d 507 (La.1982).

In the present case, plaintiffs showed that the bracelet and ring were deposited with New Orleans Diamond. Although Mrs. Hammett testified that she also deposited an earring, she was unable to produce the claim ticket for this piece, and Gregory Clark, the employee who accepted the jewelry, denied that an earring had been received. We decline to disturb the commissioner’s factual finding that plaintiffs failed to meet their burden to show a deposit of the earring.

Nevertheless, the evidence clearly shows that New Orleans Diamond was the depositary of Mrs. Hammett’s bracelet and ring. These items were subsequently transferred to U.P.S. and were lost during shipment. Although the jewelry was lost while in the custody of U.P.S., New Orleans Diamond as original depositary nevertheless had the burden to prove that it acted as a prudent administrator in safeguarding plaintiffs’ property while in its custody. We find defendant failed to carry that burden.

At trial, Gregory Clark, an employee of New Orleans Diamond, testified that he received a bracelet and a ring from Mrs. Hammett in May of 1983. He stated the bracelet was lightweight, and that he presumed it was sterling with black onyx stones.

Free access — add to your briefcase to read the full text and ask questions with AI

Hammett v. New Orleans Diamond & Jewelry Wholesalers, Inc., 580 So. 2d 1077, 1991 La. App. LEXIS 1460, 1991 WL 88763 (La. Ct. App. 1991).

580 So. 2d 1077 (Hammett v. New Orleans Diamond & Jewelry Wholesalers, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

JCM Const. Co., Inc. v. Orleans Parish School Bd.
860 So. 2d 610 (Louisiana Court of Appeal, 2003)
Hammett v. New Orleans Diamond & Jewelry Wholesalers, Inc.
586 So. 2d 535 (Supreme Court of Louisiana, 1991)