Commercial Electrical Supply Company v. Missouri Commission Company

• Decision Date: 02 July 1912
• Parties: COMMERCIAL ELECTRICAL SUPPLY COMPANY, Respondent, v. MISSOURI COMMISSION COMPANY, Appellant
• Court: Missouri Court of Appeals

148 S.W. 995

166 Mo.App. 332

COMMERCIAL ELECTRICAL SUPPLY COMPANY, Respondent, v. MISSOURI COMMISSION COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

July 2, 1912

Appeal from St. Louis City Circuit Court.--Hon. W. B. Homer, Judge.

AFFIRMED.

Judgment affirmed.

Judson & Green for appellant.

(1) The contract being upon a printed form prepared by plaintiff, all ambiguities--all doubts--therein must be determined in favor of defendant. Surety Co. v. Pauley, 170 U.S. 133; Dezell v. Casualty Co., 176 Mo. 253; Hurley v Co., 95 Mo.App. 88; Hoffman v. Indemnity Co., 56 Mo.App. 301; Seevers v. Gable, 27 L.R.A. 735. (2) A bailee of a chattel is not ordinarily responsible for the destruction of a bailed chattel by fire unless he has failed to use ordinary care for its preservation. 3 Am. and Eng Ency. Law (2 Ed.), pp. 746, 747; Story on Bailments, secs 408, 410; McEvers v. Sangamon, 22 Mo. 187. (3) The particular language in this contract is not sufficient to enlarge or extend the liability of defendant for said motor beyond that of an ordinary bailee at common law. 2 Blackstone's Commentaries, p. 452; McEvers v. Sangamon, 22 Mo. 187; Whitehead v. Vanderbilt, 10 Daly (N.Y.) 214; Coal Co. v. Jones & Adams, 134 F. 711; Lake Michigan v. Crosby, 107 F. 723; Seevers v. Gable, 27 L.R.A. (Iowa) 733; Young v. Bruce, 5 Lit. (Ky.) 324; Harris v. Nicholas, 5 Munf. 483; Clough v. Meat Co., 112 Mo.App. 177; Link v. Hathaway, 127 S.W. 916. (4) The words, "It is distinctly understood that while the motor is in your possession you are to be responsible for any damage thereto," etc., do not make defendant an insurer of the safety of the motor. They only mean that defendant is responsible for any damage thereto which is caused by its failure to use ordinary care to protect it from injury, just as any other bailee would be, because they were written with reference to the relations which existed between the parties, i. e., those of bailor and bailee. 2 Blackstone, p. 452; McEvers v. Sangamon, 22 Mo. 190; Whitehead v. Vanderbilt, 10 Daly (N.Y.) 214; Coal Co. v. Jones & Adams, 134 F. 711; Lake Michigan Co. v. Crosby, 107 F. 723; Seevers v. Gable, 27 L.R.A. 734.

Fagin & Kane and Johnson, Houts, Marlatt & Hawes for respondent.

(1) A bailee may, by agreement, enlarge his common law liability so as to become an insurer of the property bailed against any or all perils to which the thing bailed will be exposed. When a party, by his own contract, creates a duty or charge upon himself, he is bound to make it good notwithstanding any accident, because he might have provided against it by his contract. Grady v. Schweinler, 14 L.R.A. (N.S.) 1089; Sturm v. Boker, 150 U.S. 312; Reinstein v. Watts, 84 Me. 139; Story on Bailments (9 Ed.), secs. 35, 36; Schouler's Bailments, secs. 20, 106, 155; Railroad v. Pullman Co., 139 U.S. 79; Peper v. Mfg. Co., 146 Mo.App. 187; Gathwright v. Calloway Co., 10 Mo. 663. (2) The authorities are unanimous in holding that this question is one of interpretation of the particular contract as to when the bailee is liable for accidental destruction of the property. Link v. Hathaway, 143 Mo.App. 502; Jaminet v. Storage Co., 109 Mo.App. 257; McEvers v. Sangamon, 22 Mo. 187. (3) The words, "it is distinctly understood that while the motor is in your possession you are responsible for any damage thereto, baring ordinary wear and tear," are sufficient to enlarge the bailee's common law liability so as to cover the damage to the motor in the case at bar. Gathwright v. Calloway Co., 10 Mo. 663; Peper v. Mfg. Co., 146 Mo.App. 187; Drake v. White, 117 Mass. 10; Harvey v. Murray, 136 Mass. 377; Archer v. Walker, 38 Ind. 472; Cash Reg. Co. v. Callias, 84 N.Y.S. 166; Rapid, etc., Co. v. Mfg. Co., 75 N.Y.S. 1008, 75 A.D. 643; Phillips v. Stevens, 16 Mass. 238. (4) If the contract had been silent on this point of liability for damage to the bailed goods, the rule cited by appellant might possibly apply. This contract, by its express terms, takes the case out of the ordinary bailment liability. Effect must be given to the clause which fixes a definite responsibility for any damage barring ordinary wear and tear. See cases cited above.

CAULFIELD, J. Reynolds, P. J., and Nortoni, J., concur.

OPINION

CAULFIELD, J.

The plaintiff hired a piece of machinery, i. e., a motor to the defendant at twenty-five dollars a month. The contract of hiring was contained in a letter addressed by the plaintiff to the defendant and accepted by the latter, and contained provisions as follows: "It is distinctly understood that while the motor is in your possession you (the defendant) are responsible for any damage thereto, barring ordinary wear and tear, and that after you have no further use for same, you will return said motor in as good condition as when received, barring ordinary wear and tear."

While the motor was in the possession of the defendant under said contract, it was destroyed by a fire which occurred on the defendant's premises without negligence on the part of the defendant. The suit is brought for the value of the motor, $ 385. The plaintiff had judgment in the trial court and the defendant has appealed. The facts as above stated were agreed upon at the trial and the only question is whether under such facts the judgment in favor of the plaintiff can be sustained.

This being an ordinary bailment for mutual benefit, if there was no special contract enlarging the defendant's risks as bailee, the law bound it to exercise only ordinary care and diligence to keep the property safely and to return it when the time of the hiring had expired. It did not hold the defendant responsible for an injury occurring without its fault. [McEvers v. Steamboat Sangamon, 22 Mo. 187; Grady v. Schweinler, 14 L.R.A. (N.S.) 1089.] But the defendant could, by special contract, enlarge its liability, even to the extent of securing the plaintiff against all loss whatever. The question here is, did the parties intend that the contract before us should have that effect. The particular language in question is: "It is distinctly understood that while the motor is in your possession you are responsible for any damage thereto, barring ordinary wear and tear." Bailees are not to be presumed to have become liable as insurers and we should not expound this language unfavorably to the bailee, beyond its obvious scope. [3 Am. and Eng. Ency. Law (2 Ed.), p. 750.] But this does not mean that we must distort or ignore the language used by the parties; on the contrary it is our duty to give it effect as showing their intention unless there is something in the nature of the subject-matter or otherwise to indicate a different one. If the words used here are given effect as they must be, we are unable to see how defendant can escape liability for damage by fire to the motor while in its possession, for the contract expressly provided that he shall be responsible for any damage, barring ordinary wear and tear. The fact that the parties expressly excepted "ordinary wear and tear" from the damage for which the defendant was to be responsible indicates that they realized that the words "any damage" were broad enough to include every kind of damage, even ordinary wear and tear, unless expressly excepted; for if the words "any damage" had been intended to mean only damage resulting from defendant's negligence, it would have been entirely unnecessary to except ordinary wear and tear, which could not possibly be ascribed to such negligence. And it may be assumed that by recognizing the necessity for the stating of exceptions, and yet stating only one, the parties indicated that the comprehensive language used should otherwise be given its full effect. There is no reason for holding otherwise. As was said in Rapid Safety Fire Ex. Co. v. Hay-Budden Mfg. Co., 75 N.Y.S. 1008, a case very much like this: "The contract is not contrary to public policy; it is not even unreasonable or unfair. There are many reasons why the party who had the custody of the bailed goods, and the control of the premises on which they are kept, should be liable for loss in a case where no fault is proved against any one, rather than that such liability should be placed upon the party who had no control of the goods, and does not even have equal advantages for ascertaining all the facts relating to their destruction. At any rate, in this case the minds of the parties specifically met, in a lawful contract, upon the very event that has occurred, viz., the destruction of the property in question, and we see no reason why the agreement should not be enforced."

Precedents are of little value in construing such contracts as this because so much depends upon the terms of the particular contract in question, the nature of the subject-matter, etc.; but the following are cited in addition to that last above-mentioned, as tending to support our construction of this contract: Peper v. Brass Mfg Co., 146 Mo.App. 187, 123 S.W. 1012; Drake v. White, 117 Mass. 10; Archer v. Walker, 38 Ind. 472. The defendant cites us to the following cases as justifying a contrary construction: McEvers v. Steamboat Sangamon, 22 Mo. 187; Whitehead v. Vanderbilt, 10 Daly (N.Y.) 214; Seevers v. Gabel, 27 L.R.A. 733 (Iowa); Young v. Bruces, 5 Lit. (Ky.) 324; Harris v. Nicholas, 5 Munf. 483; Lake Michigan Car Ferry Transp. Co. v. Crosby, 107 F. 723; Clough v. Stillwell Meat Co., 112 Mo.App. 177, 190, 86 S.W. 580. These cases, however, in so far as they bear on the question at all, merely declare that a bailee is excused from his special contract to return the bailed property in good condition if the property perishes or is destroyed without his fault. There are different reasons given in these cases, but they all resolve themselves into the one that under...