Bunnell v. Stern

• Decision Date: 31 December 1890
• Citation: 25 N.E. 910,122 N.Y. 539
• Parties: BUNNELL v. STERN.
• Court: New York Supreme Court

122 N.Y. 539

25 N.E. 910

BUNNELL

v.STERN.

Supreme Court, New York County, New York.

December, 1890.

Appeal from an order of the General Term of the court of common pleas of the city and county of New York, reversing a judgment of a district court of said city.

The complaint, as indorsed upon the summons, is as follows, viz: “Damages by reason of negligence of defendants;” but, as elsewhere stated in the appeal book, it was in these words: “Loss of a cloak and other articles left in the care of defendants while the plaintiff was being fitted to a wrap.” The answer was a general denial. The justice before whom the cause was tried, without a jury, rendered a judgment in favor of the plaintiff for $50 and costs.

Upon appeal to the general term, this judgment was at first affirmed, but after a re-argument it was reversed and leave given to appeal to this court.

Lyman B. Bunnell for appellant.--The transaction which took place between the parties partook of a species of bailment contained in the familiar expression do ut des ( Jones on Bailment, 49; McCollins v. Reed N. Y. Com. Pl. 16 Weekly Notes of Cases, 287; Gardner v. Pullman Palace Car Co., 14 Id., 17).

Adolph L. Sanger, for respondent.

I. There could be no bailment without the bailee's knowledge and consent ( Schouler on Bailments, 4 Story on Bailments, §§ 44, 59, 60, 156, 157; Lethbridge v. Phillips, 2 Stork. 544; Merriam v. R. R. Co., 20 Conn. 354; Parsons on Contracts (Stork), 180; Tower v. Utica R. R. Co., 7 Hill, 47; Carpenter v. Taylor, 1 Hilt. 193; First National v. Ocean National Bank, 60 N. Y. 278).

II. Negligence must be proven to entitle recovery (Edson v. Weston, 7 Cow. 278; Tonawanda Co. v. Mungor, 5 Den. 267; Lamb v. Camden & Amboy Co., 46 N. Y. 279;Edwards on Bailments, §§ 6, 43, Story on Bailments, §§ 68-72; Hillis v. R. R. Co., 33 N. W. Rep. 643;First National Bank, v. Ocean National Bank, 60 N. Y. 278, 295;Beardsley v. Richardson, 11 Wend. 25; Whitney v. Palace Car Co., 9 N. E. Rep. 619; Jackson v. Eighmie, 10 State Rep. 359; Rea v. Simmons, 141 Mass. 561; 6 N. E. Rep. 699).

III. Assumption of the custody of cloak not within the scope of clerk's authority ( Schouler on Bailments, § 51; Story on Agency, §§ 74, 75, 239; 2 Kent Cow. 612; Story on Bailments, §§ 55, 60; Foster v. Essex Bank, 17 Mass. 498).

VANN, J.

The defendants are the proprietors of a retail store on Twenty-third street in the city of New York, which has a department for the sale of readymade cloaks. April 19, 1887, the plaintiff went to their store to purchase a wrap; and entering the cloak department, and making known her business, was conducted by one of the saleswomen to a place where there were two chairs near a mirror. She sat down on one of the chairs while the clerk brought her several garments to examine, and, after looking them over for ten or fifteen minutes, she selected one to try on, and went to the mirror for that purpose. A large window was open near by, and she complained of the draught, whereupon the clerk conducted her through a passageway formed by iron frames, on which wraps were hung, to another compartment, about twenty-five feet distant, where there was a mirror, but no chairs. The clerk carried the new cloak, and stood in front of the mirror waiting for the plaintiff to put it on. The plaintiff carried her own cloak, which she had removed in order to try on the other, to the place where the clerk stood, and laid it on a counter about eight feet from the mirror, directly in front of another clerk, who stood behind waiting upon a customer. She did not ask, and was not told, where to put her cloak, but the saleswoman who was waiting upon her, as well as the clerk behind the counter, observed her as she thus laid it down; but neither said anything. There was no other place to put the cloak.

The plaintiff, after spending four or five minutes in trying on the garment, said that she would take it, and at once went to get her cloak; but it could not be found, although careful search was made for it. Only one other customer was in either of the compartments while the plaintiff was in the store. There was a floor walker in the cloak department, who had the same authority there as one of the defendants. It was his duty to supervise the exhibition of goods by employees; to see that things were in their places; that the clerks attended to their duties; that nothing was taken away without authority; and that customers received proper attention. He saw nothing that transpired on this occasion, as he was in another room, but for what purpose does not appear. Two other floor-walkers were employed on that floor, and there was a detective on duty in the store, but no evidence was given as to their whereabouts when the plaintiff lost her cloak. One of the floor-walkers, when asked what arrangements were made for the protection of cloaks taken off by customers in order to try on others, answered that they “leave their garments on chairs.” The clerk who waited upon the plaintiff testified that customers under such circumstances placed their cloaks on chairs, and where it was most convenient for them, and that she paid no attention to garments removed in order to try on others. No notice was given to the plaintiff, either directly or indirectly, as to where she should put her cloak, and no instructions had been given by the defendants to their clerks as to the disposition of garments removed by customers in order to try on those offered for sale.

These facts were either expressly sworn to and not denied, or are permissible inferences which the trial Justice, sitting without a jury, is presumed to have drawn from the evidence. The question is thus presented, whether the defendants owed any duty to the plaintiff which they omitted to discharge, to her injury.

The defendants kept a store, and thus invited the public to come there and trade. In one of its departments they kept ready-made cloaks for sale and provided mirrors for the use of customers trying them on, and clerks to aid in the process. They thus invited each lady who came there to buy a cloak, to remove the one she had on and try on the one that they wished her to purchase, because the invitation to do a given act extends by implication to whatever is known to be necessary in order to do that act. It is not perceived that, under the circumstances disclosed by the evidence, the obligation of the defendant would have...