146 A. 614 | Conn. | 1929
The defendants operate a garage in Norwich. The entrance to it consists of a covered driveway about twenty feet long and after cars have been washed in the garage it is the custom to leave them in this driveway to dry off. The plaintiff left his car in the garage to be washed. He was given by the foreman in charge of it a receipt which he received but did not read and which was as follows:
"Commercial Garage Tel. 274.
Norwich Conn. License No. Date Recd. No. 8097 This is a receipt for your and must be presented at office. All property at owner's risk. Not responsible for articles left loose in car."
Plaintiff's car was washed on the washstand inside the garage by a helper employed there and when it was finished the foreman in charge directed him to *367 move it from the washstand and leave it in the driveway to dry. The helper did move the car into the driveway, but when a little later the foreman looked for him he did not find him and did discover that the car was missing. Shortly thereafter he was informed that the car, driven by the helper, had been wrecked by being driven against a wall and telephone pole beside a street at a point about a mile from the garage. The helper had been seen driving it in the street some half mile from the garage at a speed of about twenty-five miles per hour, and again immediately before the accident, then operating it at a very high rate of speed. The trial court held the defendants liable for the damage to the car by the collision and they have appealed.
The argument of the defendants is largely based upon the thesis that they are not liable for the negligence of the helper because at the time of the accident he was not acting within the scope of his employment. However that may be, their contention overlooks a clear breach of duty which fastens an unquestionable liability upon them. One of the bases of recovery stated in the complaint is that the defendants did not regard their undertaking to store and safely keep the car for the plaintiff and the trial court states as one of its conclusions that they did not perform this obligation. When the plaintiff left the car in the garage the defendants, as bailees for hire, assumed the obligation not only to use due care in the performance of the services required, but to keep it in their garage or other appropriate place ready for redelivery to the plaintiff when he should come for it.Bradley v. Cunningham,
The legal situation is so well summed up in Corbett
v. Smeraldo,
The defendants claim that they are relieved from liability by the provision in the receipt given the plaintiff at the time he left the car at the garage, "all property at owner's risk." The trial court held that this receipt was merely a token for the identification of the car and did not constitute a contract. Much the same principle applies in the situation before us as arises where the question is whether terms and conditions printed upon letterheads or contract forms, not referred to in the body of the agreement, are to be regarded as a part of the contract, and in relation to such a question we said: "It must, after all, be determined upon the principle that one party can insist only upon such terms as are so set forth and so related to the writing and the subject-matter of the contract as fairly to manifest to the other party an intent that they are to be obligatory upon him; fair dealing to him, upon the assumption that he will act with reasonable caution, must be the test; and largely each case must stand by itself. 1 Williston on Contracts, § 90d."Boston Lumber Co. v. Pendleton Bros., Inc.,
The ground upon which the liability of the defendants is sustained makes immaterial the only ruling upon evidence of which complaint is made and there is no need to consider it.
There is no error.
In this opinion the other judges concurred.