
    BUNNELL v. STERN.
    
      N. Y. Court of Appeals, Second Division,
    
    
      December, 1890.
    
      Liability of Shopkeepers for Customer’s Property.] A customer is impliedly invited by a shopkeeper to lay aside the cloak which she has on, while trying on ready made cloaks with the assistance of clerks provided for such purpose, in a special department of the shop having such goods for sale, furnished with chairs and mirrors ; and the shopkeeper under such circumstances is a voluntary custodian for profit of the cloak which the customer had laid aside, and is bound to exercise some care over it. If he wholly fail to exercise any care he will be liable in case of loss.
    
    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 defendantsbut, 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., :4 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).
    
      
      For other cases turning on the same principle where the injury was to the person, see note in 24 Abb. N. C. 181. For the case of coat lost by visitor to restaurant see 19 Daly, 460.
    
   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 ready-made 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. Tfiere 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 ini 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 been greater or in any respect different if one of their number had met the plaintiff on the street, and had not only expressly invited her to come to the store and buy cloak, but had also requested her to take off her wrap and try on the one that he offered to sell her. The clerk who waited upon her stood in the place of the defendants as long as she was engaged in the line of her duties, and no claim is made that she at any time exceeded her authority. Therefore when she led the way to the second mirror, and stood before it, holding the new garment in her hands in readiness to help the plaintiff try it on, in legal effect one of the defendants stood there inviting her to try it on, and to lay aside' her wrap for that purpose. She accepted the invitation and removed her wrap, but as she could not hold it in her hands while she tried on the other, it was necessary for her to lay it down somewhere. 'No place was provided for that purpose. There was not even a chair in sight. She was neither notified where to put it, nor informed that she must look out for it, as it would be at her own risk whatever she did with it. She put it in the only place that was available, unless she threw it on the floor, and, as she did so, in contemplation of law, the defendants stood looking at her. Under these circumstances we think that it became their duty to exercise some care for the plaintiff’s cloak, because she had laid it aside upon their invitation and with their knowledge, and, without question or notice from them, had put it in the only place that she could. The consideration for the implied contract imposing that duty resided in the situation of the plaintiff and her property, for which the defendants were responsible, and in the chance of selling the garment that she had selected.

It is unnecessary for us to define the degree of care required by the circumstances, because no care whatever was exercised by the defendants. While they created the situation that required care, they made no provision for it by furnishing a safe place to deposit the property of customers, or notifying the plaintiff to look out for her cloak herself, or making rules for the government of their employees under such circumstances, or in any other way. Even the chairs on which customers were in the habit of leaving their garments were wholly wanting, and the floor walker was absent without explanation as to the reason. As the defendants were bound to use ordinary care to keep their premises in a safe condition for the access of business visitors, whether expressly or impliedly invited (Coughtry v. Globe Woolen Co., 56 N. Y. 124, 126; Beck v. Carter, 68 Id. 285 ; Welch v. McAllister, 13 Mo. App. 89 ; Nave v. Flack, 90 Ind. 205 ; Pastene v. Adams, 49 Cal. 87 ; Learoyd v. Godfrey, 138 Mass. 315), so, we think, they' were bound to use some care for the property of the plaintiff, properly brought, there, and necessarily laid aside b)r their implied invitation in order to attend to the business in hand. They omitted to do that which “ a reasonable man, guided by those considerations that ordinarily regulate the conduct of human affairs,” would have done under the same circumstance, and were thus guilty of negligence.

Our attention has been called to no authority directly in point. The cases relied upon by the defendants are Carpenter v. Taylor, 1 Hilt., 193 ; Rea v. Simmons, 141 Mass. 561 ; 6 Northeast. Rep. 699, and Whitney v. Car Co., 9 Northeast. Rep. 619. In Carpenter v. Taylor, the plaintiff entered the saloon of an hotel to get refreshments between 12 and 1 o’clock at night, and when he went out the place was being closed. He left his opera glass behind, but it did not appear where, and the next morning when he called for it it could not be found. As it did not appear that the defendant, or any of his servants ever received or even saw the glass, it was properly held that he was not responsible for its loss. While Rea v. Simmons is somewhat analogous to the case at bar In its facts, the decision seems to have proceeded on a question of practice. The entire opinion consists of ten lines, and states that while the case was reported to the court for its opinion upon the question of law involved, no specific questions of law are stated in the report, and none áppear to have been raised at the trial. It then states that the decision of the trial court upon the facts is conclusive, and cites, two authorities which hold that the facts found below are not open to review. In Whitney v. Car Co., the decision was simply that the plaintiff was guilty of contributory negligence, while the question whether there was any evidence of negligence on the part of the defendant was expressly reserved.

We think that the defendants as voluntary custodians, for profit to themselves, were bound to exercise some care over the plaintiff's cloak, and that, on account of their absolute failure in this regard, they were properly held liable by the trial court for the damages that she sustained.

The order of the general term should be reversed, and the judgment of the district court affirmed with costs.

All the judges concurred except Bradley, J., dissenting, and Haight, J., absent.  