This was an action to recover the sum of $4,319.67 for damages alleged to have been suffered by the plaintiff through the defendant’s alleged breach of contract. The trial court gave judgment for the plaintiff in the sum of one thоusand six hundred dollars from which the defendant now appeals.
In substance the facts of the case are thеse. By oral agreement the appellant chartered the plaintiff’s steamer “Napa City” for a certain period and rate of compensation, agreeing to return the vessel at the end of the periоd in the same condition it was in at the time of the charter except wear and tear. During the period of thе hiring and while under the control of the appellant the “Napa City” became wrecked and sunken. The respondent sustained losses as the result of the disablement and sinking of the vessel in the sum found and fixed by the judgment. The primary pоint presented for consideration and determination is whether or not the appellant, by the terms of the agreement, assumed the risk and responsibility of an absolute insurer rather than that of an ordinary bailee. The aрpellant contends that, by the terms of the contract, it assumed no such responsibility or liability, and that, thereforе, the trial court erred in substantially so finding.
We are of the opinion that there is nothing in the wording of the agreement that may possibly be construed as meaning that the appellant promised to return the “Napa City” to its owners in good condition less wear and tear—at all events. We hold with the appellant that the stipulation insisted upon by the respondent—that the appellant should return the steamer in good condition less wear and tear—is merely the expression of what the law would have implied in its absence (Civ. Code, secs. 1928, 1929, 1955); and certainly it cannоt be justly or logically urged that by expressing in his agreement what the law implies the ordinary bailee increases his liability to that of an absolute insurer. It is well settled in this connection that unless there be an explicit agreement to assume an insurance risk, the bailee cannot be held liable for one. We are constrained to hold, thеrefore, that where nothing more appears than a mere promise to return the thing hired in good condition less wear and tear at a specified time, it does not and cannot be said to import a contract on the part of the hirer to insure it against inevitable casualties
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or losses occurring without fault on his part. Our сonclusions in this behalf are fully sustained by the following authorities:
Ames
v.
Belden,
17 Barb. (N. Y.) 513;
Clark
v.
United States,
Anticipating that the judgment might not be sustained upon the theоry that the appellant was, under the terms of the contract, an insurer against injury or loss occurring without fault on its рart, the contention is made upon behalf of the respondent that the findings, as a whole, support the judgment, and therefore, in the absence of a record showing the entire evidence adduced upon the trial, the judgment must be affirmed. This contention is rested on the fact that although the court found that “said steamboat becаme sunk through causes wholly without fault on the part of the defendant, ’ ’ it had previously and in a separate finding deсlared, “that during the term of said hiring and while said defendant was in the use, occupancy, possession and contrоl thereof, the said steamboat and its equipment were damaged and injured and became wrecked and sunk in thе waters of the bay of San Francisco ...” It is now insisted that although the appellant be rightfully held not liable for sinking the steamer, nevertheless, it may and should, under the finding last above quoted, be held liable for damaging and wrecking the vessel.
This contention is answered, we think, by the fact that the finding immediately under consideration is drawn in the exact phraseology of the complaint, which admits of no interpretation save that the appellant was chargеd with simultaneously damaging, sinking, and wrecking the vessel, and not with the separate and unrelated acts of damaging, then wrеcking, and then sinking it. In the absence of an affirmative showing in the record, the theory upon which a case was tried may be deduced from the issues framed by the pleadings and the findings made by the court.
(Illinois Trust etc. Bank
v.
Pacific Railway Co.,
The judgment and the order appealed from are reversed and the cause remanded for a new trial.
Kerrigan, J., and Richards, J., concurred.