Aquadro v. Crandall-Mckenzie and Henderson, Incorporated

• Decision Date: 28 December 1956
• Citation: 182 Pa.Super. 435,128 A.2d 147
• Parties: Mathilda AQUADRO, Appellant, v. CRANDALL-McKENZIE & HENDERSON, Incorporated.
• Court: Pennsylvania Superior Court

128 A.2d 147

182 Pa.Super. 435

Mathilda AQUADRO, Appellant, v. CRANDALL-McKENZIE & HENDERSON, Incorporated.

the Superior Court of Pennsylvania

December 28, 1956

Argued November 19, 1956

Appeal, No. 149, April T., 1956, from order of County Court of Allegheny County, 1953, No. 1357, in case of Mathilda Aquadro v. Crandall-McKenzie and Henderson Incorporated. Order reversed.

Assumpsit. Before KAUFMAN, J.

Verdict for plaintiff; defendant's motion for new trial granted. Plaintiff appealed.

Order reversed with directions to the court below to enter judgment on the verdict.

Samuel Avins, for appellant.

Frank R. Bolte, for appellee.

Before HIRT, GUNTHER, WRIGHT, WOODSIDE, and CARR, JJ. (RHODES, P.J and ERVIN, J., absent).

OPINION

WRIGHT, J.

Mrs Mathilda Aquadro brought suit in assumpsit to recover the value of certain rugs which she had entrusted to the defendant for dry cleaning, and which were returned in damaged condition. Following a jury verdict in favor of the plaintiff, the court en banc granted a new trial. The plaintiff has appealed.

At the trial appellant testified that she sent five green wool rugs to appellee, specifying that they be dry cleaned for the purpose of removing surface soil. When the rugs were returned they were marked with tan stains which substantially destroyed their value. It was agreed that there were no stains visible to the eye when the rugs were originally received at the plant. Appellee endeavored to show that the rugs were cleaned in the customary manner, and with proper materials. Specifically, appellee offered testimony to the following effect. After the soil was flushed out by a dry solvent, termed naptha, the rugs were hung in a drying room where air was passed through them for thirty minutes at a temperature of 120 degrees to 140 degrees in order to remove the naptha vapors. This degree of heat caused sugar in the rugs to caramelize so that stains appeared. The sugar could have come from hard or soft drinks, tea or coffee, which had been spilled on the rugs. Wiping up such drinks after spillage would not remove all the sugar, since only the top nap would be reached. To remove the sugar it would be necessary to completely soak the spots, or to use a wet cleaning process. However, with such a method there is danger of color running, shrinkage, and removal of sizing. Appellee conceded that, if the rugs were atmospherically dried, the sugar would not caramelize, but took the position that this was not the accepted method used in dry cleaning plants since it required an extremely large area over which to spread the rugs and would take an impractical length of time for the air to complete the drying process. The caramelized sugar stains, once they appeared, could not be removed by any cleaning process.

In his charge the trial judge aptly remarked: "I am sure ... we all are learning something about rug cleaning". He reviewed the evidence, stated the rules of liability as between bailee and bailor, and submitted to the jury the question of the bailee's negligence. Neither party has raised any question as to the propriety of the charge. It should also be noted that appellee did not ask for binding instructions. In its opinion awarding a new trial the court en banc said: "The plaintiff in this case proved that the goods were damaged and rested. There was no evidence on the part of the bailee disclosing negligence. The plaintiff bailor did not go forward and prove negligence, therefore, a verdict could not be sustained".

In the leading case of Schell v. Miller North Broad Storage Co., 142 Pa.Super. 293, 16 A.2d 680, Judge (later Mr. Justice) PARKER said: "When the bailee returns the goods in a damaged condition or fails to return them at all the law requires him 'to give an account of the matter' or assume responsibility for the loss. 'But when he gives an account, although it may be a general one, of the cause, and shows the occasion of the injury, it then devolves upon the plaintiff to prove negligence, unskillfulness, or misconduct' ... If the bailee in endeavoring to exculpate himself by describing the manner of the loss, discloses negligence, of course the bailor is not required to proceed farther ..." (italics supplied).

The most recent pronouncement on the subject appears in Moss v. Bailey Sales and Service, 385 Pa. 547, 123 A.2d 425, wherein Mr. Justice JONES said: "A bailor makes out a prima facie case against his bailee for hire for the recovery of the value of unreturned bailed property by showing his delivery of it to the bailee and the latter's failure to redeliver it upon the bailor's due demand therefor. It then becomes the bailee's duty, if he would escape responsibility for the loss of the bailed article, to show that his failure to redeliver it upon the termination of the bailment was because of its loss by fire, theft or other casualty free from fault on his own part. With that done, the burden of going forward with evidence to prove that the loss was due to the bailee's negligence is then upon the bailor. The question that has most frequently arisen in the trial of such litigation is concerned with both the burden and the order of proof rather than with the law of bailments" (italics supplied).

Where there is a doubt as to the inference to be drawn from the evidence, the question of negligence is properly for the jury. Olson v. Swain, 163 Pa.Super. 101, 60 A.2d 548; Russo v. Pittsburgh Railways Co., 164 Pa.Super 396, 64 A.2d 666. See also Trostel v. Reading Steel Products...