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06/06/88 Crella Magee, v. Walbro

June 6, 1988

CRELLA MAGEE, PLAINTIFF-APPELLANT

v.

WALBRO, INC., ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

525 N.E.2d 975, 171 Ill. App. 3d 774, 121 Ill. Dec. 668 1988.IL.875

Appeal from the Circuit Court of Cook County; the Hon. Eugene E. Campion, Judge, presiding.

APPELLATE Judges:

JUSTICE O'CONNOR delivered the opinion of the court. CAMPBELL, P.J., and BUCKLEY, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE O'CONNOR

Plaintiff Crella Magee appeals from a judgment in favor of defendants Walbro, Inc., and Mysel Furs after a bench trial for breach of bailment and conversion of one blue fox fur jacket. For the reasons below, we reverse and remand.

Walbro, Inc., doing business as Mysel Furs (referred to collectively hereinafter as Mysel's), was in the business of storing furs, and in May 1982 solicited Mrs. Crella Magee's business to store her furs for the summer of 1982. Mrs. Magee agreed. United Parcel Service provided the service of picking up furs from the customers and delivering them to Mysel's.

Mysel's and UPS used the following procedure to record the transit of furs: Mysel's prepared a list telling UPS how many furs to pick up from each customer. For each fur, Mysel's gave UPS a box with a unique call number. A ticket with a number matching the call number was given to the customer when UPS picked up the fur. The UPS driver maintained a log sheet that listed the boxes by call number. When the boxes were delivered to Mysel's, a Mysel's employee signed the UPS log sheet to verify delivery of the boxes. When the boxes were delivered in the instant case, Mysel's did not inspect the boxes to see if they were empty. Once the boxes were in the possession of Mysel's, the furs were placed in a locked, alarmed vault to which several Mysel's employees had access. Mysel's then prepared a storage receipt and issued it to the customer. On May 25, 1982, UPS, upon Mysel's order to pick up three furs, delivered and picked up three UPS boxes from Mrs. Magee's home. The UPS driver gave three tickets to Mrs. Magee's husband, who was there at the time. Mr. Magee later testified that a blue fox fur jacket was in one of the boxes. In July, some six weeks after the furs were picked up, Mysel's issued to Mrs. Magee a storage receipt that listed just two furs. Mrs. Magee called Mysel's immediately, and received assurances that the furs were in storage. In October 1982, however, when Mrs. Magee went to pick up the furs, the blue fox jacket was missing.

Lorita Erenberg, a Mysel's employee who would later testify to Mysel's procedures, called in a tracer to UPS, which subsequently indicated that three cartons were delivered to Mysel's on May 26, 1982. The call numbers of the three cartons matched the tickets that had been given to Magee's husband. At trial an investigator for UPS testified that it was unlikely an empty box was delivered, because empty boxes would have been returned to Mysel's as empty, and no ticket would have been issued. Stuart Walowitz, a corporate officer of Mysel whose duties included the storage department at Mysel's, testified that he would have known immediately if an empty box had been delivered. Further, an empty box in UPS' sorting system would have been brought to the attention of a supervisor. Mysel's made no claim to UPS for the lost jacket and stated to Mrs. Magee that its liability for lost articles was limited to $100.

Mrs. Magee brought action against Walbro, Mysel, and UPS, alleging breach of bailment and conversion against all three defendants, and negligence against Walbro and Mysel for negligent shipping and handling of the jacket, and negligence against Walbro and Mysel for failure to submit a written claim to UPS. The negligence claims are not raised on appeal.

On July 28, 1986, a request for admission of fact pursuant to Rule 216 of the supreme court rules (107 Ill. 2d R. 216) was served upon Walbro and Mysel. The request included a request to admit that the value of the jacket at the time it was lost was $3,400. The defendants made no response to the request. On November 24, 1986, shortly before the bench trial began, the trial court allowed counsel for Walbro and Mysel to respond orally. Counsel stated, "Not having seen the jacket, we can neither admit nor deny the value of the jacket."

At trial Walbro and Mysel argued that the jacket was not delivered, and alternatively, that Mrs. Magee could prove neither ownership nor value of the jacket, facts necessary for recovery. Mrs. Magee testified that she bought the jacket on sale for $2,600 from Evans' Furs, and that the regular price of the jacket was $3,400. Mrs. Magee also testified that she had insured the jacket for $3,400, which, in her opinion, was its value. Evans' Furs, however, showed no record of having made the sale. Mrs. Magee also sought to produce the insurance rider for the jacket, as proof of value and ownership. The rider was not admitted into evidence, however, by the trial court.

After testimony was heard, the trial court ruled in favor of the defendants. The trial court found that there had been a bailment between Magee and UPS, but that UPS had extinguished its liability upon delivery to Mysel. UPS was subsequently voluntarily dismissed. The court also found a bailment between Magee and Walbro and Mysel, but ruled that Magee had proven neither that she owned the lost jacket, nor its value.

Magee filed a post-trial motion requesting alternatively that the trial court vacate the judgment for the defendants as against the manifest weight of the evidence, or for a new trial due to prejudicial errors. The trial ...


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