188 A. 624 | Pa. Super. Ct. | 1936
Argued October 12, 1936. The plaintiff drove his automobile into an open parking lot operated by the defendant, paying a fee of 10 cents. He received a ticket or check, which stated: "Not responsible for fire or theft. All valuables must be checked." About 5 o'clock when he returned for his car, he found it had been stolen. It was recovered the next day, with some of the equipment missing. Plaintiff brought this suit, alleging that the defendant, as bailee, had failed to exercise ordinary diligence in the care of the chattel bailed. A trial in the municipal court before TUMOLILLO, J., sitting without *226 a jury, resulted in a judgment for plaintiff.
The appellant takes the position here, as it did in the court below, that there was a contractual limitation of liability and no proof of negligence.
The duty of a bailee in a bailment for mutual benefit is to exercise ordinary care: Smith v. Cohen,
It will be noted that under the terms of the contract, the bailee did not limit its liability against its own negligence; that subpect was not mentioned. The receipt sets forth merely that no responsibility was assumed for fire or theft.
In D. C. Towboat Co. v. Starrs,
In Langford v. Nevin, (Texas),
Whatever construction may be placed on the receipt, however, the appellant is confronted with the well-recognized rule that the right of a bailee to limit his liability by special contract does not go to the extent of relieving him against his own negligence.
In Lancaster County Natl. Bank v. Smith,
In Lance v. Griner,
Zell v. Dunkle et al.,
Other cases relied upon by appellant do not involve bailments, but leases and agreements, and are readily distinguished in their facts from the case at bar.
Our conclusion is that, under the facts and the law, the bailee was relieved of liability as an insurer, but not for loss due to its negligence.
The next question for consideration is whether there was sufficient evidence of negligence to justify a recovery.
If a bailee fails to return bailed property or give a satisfactory explanation for its disappearance, he has the burden of proving that the loss was not due to his negligence. This is upon the theory that when a bailee has exclusive possession of the goods, the acts attending loss or injury must be peculiarly within his own knowledge and, therefore, he is required to excuse or justify a failure to return the goods in a proper condition:Logan v. Mathews,
In sustaining a judgment for plaintiff in Baione v. Heavey,
This ruling is in accordance with the text in 6 C.J. 1158, § 160, which reads as follows: "The rule adopted in the more modern decisions is that the proof of loss or injury establishes a sufficient prima facie case against the bailee to put him upon his defense. Where chattels are delivered to a bailee in good condition and are returned in a damaged state, or are lost or not returned at all, the law presumes negligence to be the cause, and casts upon the bailee the burden of showing that the loss is due to other causes consistent with due care on his part." We cited, with approval, this rule in O'Malley v. Penn Athletic Club,
The evidence offered in this case shows that the parking lot operated by defendant is on the northeast corner of 20th and Market streets, Philadelphia, fronting 160 feet on Market street and running back to a depth of 180 feet to Commerce street, with a capacity of 240 to 250 cars. The plaintiff parked his car, fronting 20th street, from which point a car could be driven across the pavement into the street. There were 30 to 50 cars parked, facing that way. The defendant testified that six attendants were employed, and, according to one of them, four were on duty all that day prior to 5:30, but at times one or more of them were driving cars to be washed or greased, which required them to be taken a distance of about ten blocks. The plaintiff *230 stated that when he called to get his car, he saw only two attendants present on the lot.
We are of the opinion that the evidence was sufficient to justify the trial judge in finding that the bailee was negligent in not exercising due care in safeguarding the bailor's car.
A full consideration of this evidence and argument of learned counsel convinces us that the plaintiff is entitled to his judgment.
Judgment affirmed.