182 Pa. Super. 435 | Pa. Super. Ct. | 1956
Opinion by
Mrs. Mathilda Aquadro brought suit in assumpsit to recover the value of certain rugs which she had entrusted to the defendant for dry cleaning, and which were returned in damaged condition. Following a jury verdict in favor of the plaintiff, the court en banc granted a new trial. The plaintiff has appealed.
At the trial appellant testified that she sent five green wool rugs to appellee, specifying that they be dry cleaned for the purpose of removing surface soil. When the rugs were returned they Avere marked Avitk tan stains which substantially destroyed their value. It Avas agreed that there Avere no stains Adsible to the eye when the rugs Avere originally received at the plant. Appellee endeavored to sIioav that the rugs were cleaned in the customary manner, and Avith proper materials. Specifically, appellee offered testimony to the following effect. After the soil Avas flushed out by a dry solvent, termed naptha, the rugs Avere hung in a drying room where air Avas passed through them for thirty minutes at a temperature of 120° to 140° in order to remove the naptha vapors. This degree of heat caused sugar in the rugs to caramelize so that stains appeared. The sugar could have come from hard or soft drinks, tea or coffee, which had been spilled on the rugs. Wiping up such drinks after spillage Avould not remove all the sugar, since only the top nap Avould be reached. To remove the sugar it would be necessary to completely soak the spots, or to use a Avet cleaning process. How-eAer, with such a method there is danger of color running, shrinkage, and removal of sizing. Appellee conceded that, if the rugs Avere atmospherically dried, the sugar Avould not caramelize, but took the position that this Avas not the accepted method used in dry cleaning plants since it required an extremely large area over
In his charge the trial judge aptly remarked: “I am sure ... we all are learning something about rug cleaning”. He reviewed the evidence, stated the rules of liability as between bailee and bailor, and submitted to the jury the question of the bailee’s negligence. Neither party has raised any question as to the propriety of the charge. It should also be noted that appellee did not ask for binding instructions. In its opinion awarding a new trial the court en banc said: “The plaintiff in this case proved that the goods were damaged and rested. There was no evidence on the part of the bailee disclosing negligence. The plaintiff bailor did not go forward and prove negligence, therefore, a verdict could not be sustained”.
In the leading case of Schell v. Miller North Broad Storage Co., 142 Pa. Superior Ct. 293, 16 A. 2d 680, Judge (later Mr. Justice) Parker said: “When the bailee returns the goods in a damaged condition or fails to return them at all the law requires him ‘to give an account of the matter’ or assume responsibility for the loss. ‘But when he gives an account, although it may be a general one, of the cause, and shows the occasion of the injury, it then devolves upon the plaintiff to prove negligence, unskillfulness, or misconduct’ ... If the bailee in endeavoring to exculpate himself by describing the manner of the loss, discloses negligence, of course the bailor is not required to proceed farther . . .” (italics supplied).
The most recent pronouncement on the subject appears in Moss v. Bailey Sales and Service, 385 Pa. 547, 123 A. 2d 425, wherein Mr. Justice Jones said: “A
Where there is a doubt as to the inference to be drawn from the evidence, the question of negligence is properly for the jury. Olson v. Swain, 163 Pa. Superior Ct. 101, 60 A. 2d 548; Russo v. Pittsburgh Railways Co., 164 Pa. Superior Ct. 396, 64 A. 2d 666. See also Trostel v. Reading Steel Products Corp., 152 Pa. Superior Ct. 273, 31 A. 2d 909. Negligence is the doing of that which a reasonably prudent man would not do under the circumstances, or the failing to do that which a reasonably prudent man would do under the circumstances: Schentzel v. Philadelphia Rational League Club, 173 Pa. Superior Ct. 179, 96 A. 2d 181. The test of negligence is whether the wrongdoer could have anticipated and foreseen the likelihood of harm resulting from his act: Dahlstrom v. Shrum, 368 Pa. 423, 84 A. 2d 289. What constitutes ordinary care or diligence varies with the circumstances under which the bailment is made, the nature of the subject matter, the business in which the bailee is engaged, and the usages
In determining whether there was evidence in the instant case to justify the finding of negligence on the part of appellee we must consider the oral testimony in its aspect most favorable to the verdict and reject all inconsistent inferences: Hankins v. Mack, 364 Pa. 417, 72 A. 2d 268. Here the appellant proved the bailment and the return of the bailed property in a damaged condition. Appellee then introduced evidence showing the manner in which the rugs were cleaned. Considerable testimony was given dealing with caramelized stains resulting from sugar spots. Lloyd E. Jackson, a chemical engineer called by appellee as an expert, testified that sugar stains were among the most common found in the cleaning industry. John W. Crandall, appellee’s President, testified: “The fact of the-matter is, because this [sugar stain] is so common .in clothing and rug cleaning, that this pamphlet happened to-be' put out by the National Institute of Eng •Cleaning for distribution throughout, the country’^. Mr. -Crandall also testified that, after the damage., occurred, he sent a'copy'of this pamphlet to Mrs. Aquadro. Mr. Crandall and Edson D. Eldridge, foreman of appellee’s
Our review of the record leads us to the conclusion that the jury was warranted in finding from the evidence that appellee was negligent in its handling of this bailment. We cannot agree with the court en banc that “the defendant explained the loss Avithout disclosing negligence”. An order granting a new trial may be reversed where it appears that such action constituted an abuse of discretion: Jones v. Williams, 358 Pa. 559, 58 A. 2d 57. See also Martin v. Arnold, 366 Pa. 128, 77 A. 2d 99. Where the facts have been established by the jury in conformity with the testimony, plaintiff’s claim must be disposed of by the application of the appropriate legal principles, and it is error to .grant a-.hew trial: Tucker v. Tucker, 370 Pa. 8, 87 A. 2d 650.
Order reversed with directions to the court below to enter judgment on the verdict. ■ .