30 A.2d 126 | Pa. | 1943
This appeal involves an action of assumpsit to recover the value of a fur coat.
On April 14, 1941, Emma G. Loeb, the appellant, delivered three fur coats to appellee, Jacques Ferber, a fur dealer, for the purpose of storage. At the time of delivery of the coats to him appellee signed a printed "Storage Receipt", providing as follows: "In consideration of $25.00 charges I hereby agree to keep the said articles free from damage by moths and to returnthe said articles in the same condition as when received byme." The form used also stated: "And further, it is *350 understood that I have caused the above goods to be insured against loss by Fire or Burglary up to the 31st day of December, 1941, for the amount of $__________, the value hereby agreed upon by the bailor"; but this clause was stricken out on the receipt issued to appellant by a horizontal line drawn through its entire length. Upon the failure of appellee to return one of the fur coats, worth $3500, on demand, appellant instituted this action of assumpsit to recover its value. Appellee filed an affidavit of defense admitting his failure to return the coat but denying liability therefor on the ground that prior to appellant's demand for its return it had been stolen from his place of business by a trusted employee without any fault or negligence on his part. On the theory that the agreement "to return the said articles in the same condition as when received" obligated appellee to make good the loss of the coat irrespective of negligence, appellant filed a rule for judgment for want of a sufficient affidavit of defense. The court below discharged the rule after argument thereon, and this appeal followed.
While a bailee may, by special contract, assume the extraordinary liability of an insurer towards the bailed property, a covenant to insure may never be implied and will be imposed only where it is found in the agreement in clear and explicit language: Story on Bailments (9th ed.) section 35; 6 Am. Jur., Bailments, section 180. A mere agreement to return the bailed property, without more, does not impose such unusual responsibility; and the same is generally held though the promise is "to return in good condition", or as in the present case, "in the same condition as when received." The reason for this is well stated in Young v. Leary,
Hoy v. Holt,
We conclude, therefore, that the language relied upon by appellant as enlarging appellee's common law liability to that of a virtual insurer cannot be given such effect, but must be construed simply as an attempt to express the general obligation imposed upon appellee by law; and this conclusion is confirmed by a fact which, although not part of the record, was disclosed at the oral argument, namely, that appellant did herself insure the coat in question against loss and has actually received its value from her insurance carrier. It follows that appellee is not liable to appellant for the loss occasioned by a theft of the coat, occurring wholly without his fault, and that the refusal of the court below to enter judgment for want of a sufficient affidavit of defense was proper: Smith v. Cohen,
Appeal dismissed at appellant's cost.