188 A. 626 | Pa. Super. Ct. | 1936
Argued October 12, 1936.
The facts in this action of assumpsit are very similar to those in the case of Wendt v. Sley System Garages,
The bailor herein, on the afternoon of April 27, 1934, drove his car into the same open parking lot involved in the Wendt case, operated by the bailee, the appellant herein, and received a check or receipt, which set forth that the bailee was "Not responsible for fire or theft. All valuables must be checked." About 4 o'clock the same day the bailor returned and learned that his automobile had been stolen. It was recovered the next day, but a suitcase, which was described as being very large — about 20" high, 36" wide, and 12" thick, left standing in the body of the car and extending several inches above the back of the front seat, *232 was missing. This suit was brought to recover the value of the suitcase, two suits of clothes, and other wearing apparel contained therein. It was agreed at the trial that if the verdict be in favor of the plaintiff, it should not be in excess of $ 175, which was the amount of the verdict.
We held in the Wendt case that a bailee cannot limit by contract his liability for negligence, and, if the bailor proves the bailment and the failure of the bailee to return the property, he has made out a prima facie case, and it is then the duty of the bailee to go forward with proof to show that he used proper care over the bailed property. In the absence of such proof, the bailor is entitled to judgment.
We will not consider further those questions raised here also by the appellant, but will direct our attention to the other point urged, namely, that the bailor was not entitled to judgment representing the value of the lost articles, as no express notice was given the bailee that the suitcase was in the automobile. Before the bailee could be held liable, it was necessary to show circumstances that would amount to notice. While no express notice was given, the trial judge left to the jury the question whether the suitcase was in such a position and of a size that the defendant had knowledge of its presence, and gave instructions that if it did not know that fact, the verdict should be in favor of the defendant. The bailor was a traveler, his car carrying a license tag of the state of Rhode Island, where he resided. It would not be outside of ordinary conduct for him to carry luggage in his car. From common experience and knowledge, one usually expects a tourist to have additional wearing apparel with him.
In Hunter v. Reed's Sons,
The appellant relies, also, on Moss v. Jannetti Body Co.,
The liability of the bailee imposed upon it the duty of exercising due care for the safety and protection of the car(Vannatta v. Tolliver,
In view of the stipulation of counsel at the trial, nothing need be said respecting the value of the property, other than that the amount of the loss was established by proof.
Judgment is affirmed.