
    Jennie V. Bunnell, Resp’t, v. Isaac Stern et al., App’lts.
    
      (New York Common Pleas,
    
    
      Filed January 3, 1888)
    1. Shop-keepers—Liability—Commencement op
    The plaintiff, while in defendants’ store for the purpose of buying a cloak, took off her own and laid it upon the counter, not, however, calling the attention of the clerk to that fact and not asking permission. Held, the defendant could not be held liable, except upon the theory that the defendants owed some duty to the plaintiff respecting the custody of her ■cloak, which they failed to perform, and that this could not have arisen until the plaintiff had in some way parted with and the defendants assumed the custody of the garment.
    2. Same—Liability not governed by law of common carriers.
    
      Held, that the rules as to the liability of common carriers had never been applied to the case of shop-keepers, and that even if in such a case a common carrier would be held liable, the defendants’ liability could not be predicated on that ground, but must, if found to exist, be based upon the law governing bailments.
    3. Bailment—Constituent elements of—Consent of bailee necessary.
    
      Held, that in order to constitute a bailment, there must be, besides the parties to the transaction, the actual or constructive acceptance by the bailee of the thing bailed in trust to be safely delivered to the bailor on demand,and that the duties and responsibilities of a bailee could not be thrust upon one without his consent, but must be ordinarily assumed by him or his agent.
    
      4. Same—What is not sufficient to constitute a deposit.
    
      Held, that the laying of the cloak on the counter without the knowledge or consent of the defendants’ agent, was not a constructive deposit with the defendants.
    5. Same—Gratuitous bailment—What necessary to create liability ON PART OF BAILEE. .
    
      Held, that even il it were, the deposit was for the benefit of the bailor alone, and constituted a gratuitous bailment only, and that there being no proof of gross negligence or fraud on the part of the defendants, no recovery could be had.
    Appeal from a judgment of a district court in plaintiff’s favor.
    
      S. B. Bunnell, for resp’t; If. S. Isaac, for app’lts.
   Bookstaver, J.

The action was brought to recover the value of a cloak lost by plaintiff while shopping in defendants’ store. She had gone into the store for the purpose of buying a cloak or wrap.

After looking at several in the department where they were, she took hers off to try on one she had selected, but, feeling a draft there, she was shown into another department, plaintiff carrying her own cloak and the clerk the new garment. When in the other department plaintiff placed hers on a counter intended for the exhibition and sale of goods.

At the tíme a clerk was behind this counter engaged in her ordinary duties of waiting on customers. Plaintiff did not call the attention of the clerk to her cloak, nor ask permission to leave it there. There were forms for the exhibition of garments near, but it is in dispute whether or not there were chairs on which plaintiff’s cloak might have been put; the testimony does not show that there was any place specially provided for leaving garments while trying on new ones. After leaving her cloak on the counter plaintiff walked about eight feet away to a mirror where she put on the selected garment and examined it. Within five minutes she concluded to buy the new wrap, and returned to the counter for hers, but it was gone.

The defendants had three floor, walkers on that floor, a part of whose duty it was to see that nothing was stolen from the establishment; they also had a detective for the purpose. One of the floor walkers and the detective, with the clerks, endeavored to find the missing cloak, but without avail, and the supposition is that it was stolen. On this state of facts the justice found a verdict for plaintiff.

Such a result can only be sustained on the theory that the defendants owed some duty to the plaintiff respecting the custody of her cloak which they failed to perform.

It is clear that such a duty would not have arisen until the plaintiff had, in some way, parted with; and the defendants had assumed, the custody.

Even an innkeeper is not liable for property left in his inn by one not a guest; nor is he responsible to his guest for property never in his actual or constructive custody. Grinnell v. Cook, 3 Hill, 485; Gastenhofer v. Clair, 10 Daly, 265.

Nor is a common carrier of passengers hable to the latter-for articles of clothing left in the seats of an ordinary railway carnage, without being actually delivered to the care of the carrier’s servants. Tower v. Utica and Schenectady R. R. Co., 7 Hill, 47.

A different rule has been laid down in some of the states, in respect to articles of clothing, etc., left in parlor coaches where an extra compensation has been paid for the accommodation furnished, but even, in respect to these coaches, it has been held that if the article is left in an exposed place, the carrier shall be relieved from liability. Whitney v. Palace Car Co., 9 N. E. Rep., 619.

In this case, the plaintiff certainly kept the possession of her cloak, until she voluntarily left it on a counter intended for the exhibition and sale of goods, and then, she did not call the attention of defendants’ servants to the fact; nor did any of them take charge of it, so that even under the strict rules applied to innkeepers and common carriers, it is extremely doubtful whether this action would he.

But such rules have never been applied to shopkeepers. The defendants’ liability, if any, must be found in the law governing bailments.

In order to constitute a bailment, there must be a person to make the bailment, a person to whom the bailment is made; and the actual or constructive acceptance by the latter, of the thing bailed in trust to be safely delivered to the bailor on demand. Schouler on Bailments, 40; Story on Bailments, §§ 44, 59, 60, 156, etc.

The duties and resposibilities of a bailee cannot be thrust upon one, without his knowlege and against his consent. They must be voluntarily assumed by the party to be charged, or his agents, duly authorized. First National Bank v. Ocean National Bank, 60 N. Y., 278; Story on Bailments, § 60.

In this case, there was no actual, and we think, there was no constructive acceptance of the care of plaintiff’s property by defendants, and consequently, no bailment.

But granting that the mere laying of the cloak on the counter without bringing the fact to the attention of defendant’s servants, was a constructive deposit; it was for the benefit of the bailor alone, and constituted a gratuitous bailment only; and there could be no recovery without proving gross negligence or fraud. Edwards on Bailments, § 43; Story on Bailments, §§ 68, 72; Willis v. Railroad Company, 33 N. W. Rep., 643.

No such proof was offered in this case ; while the defendants’ showed that they had floor walkers on that floor, and as far as appears, the same care and general oversight was taken of plaintiff’s cloak, as was taken of their own goods.

Plaintiff contends that the general invitation extended to all to enter their store, and deal with defendants, and the readiness, on their part, to allow her to take off her own cloak, and try on a new article, coupled with the expected sale of the same, and plaintiffs’ determination to buy it, constituted both an invitation to take off her cloak, and a valuable consideration for its care.

It is difficult to perceive how a mere hope to make a profit on the sale of a garment, without providing specially for the custody of the article removed, makes a valuable consideration for such care. And it cannot be contended that the profit which would have been made on sale, was the consideration; for if there had been no sale, there would plainly have been no consideration, and thus for precisely the same acts, on the part of the defendants, directly opposite results would follow depending on the event of the negotiations or the whim of the customer

This cannot be the case.

In Carpenter v. Taylor (1 Hilt, 193), it was held by this court that a restaurant keeper was not hable for articles left in or stolen from his restaurant, although it must be pre sumed that the keeper made a profit on what he sold.

In Rea v. Simmons (141 Mass., 561), the plaintiff went into a clothing store to buy a suit of clothes. He was directed to a closet, where he could try on the suit, and leave his own, until it could be ascertained whether it fitted. He left his clothing in the place designated, while he returned to see whether the garments fitted. After he had done so, he went back to the closet to put on his own clothing, and found that his watch and pocket-book had been stolen. In that case, the facts were 'much stronger than in this, and yet it was held that no such negligence was shown, on the part of the shopkeeper as entitled the customer to recover.

In the case under consideration, negligence, if any, was on the part of the plaintiff, in leaving her property on a counter not intended for such purpose, but for the sale of goods; and that, without calling the clerk’s attention to the fact. It would be unreasonable to hold the defendants responsible for the neglect of care of property which was never knowingly in their possession; and concerning which, they never assumed any relation of trust or duty.

We do not, at this time intend to decide whether or not, it would have been within the sphere of the clerk’s employment, to have taken charge of the plaintiff’s property, even if left with her, so as to render her principals responsible for it, in the event of its loss.

Nor do we intend to pass upon the question of the liability of the principals, if the deposit of the property where it was placed, had been called to the attention of the clerk; as it is not necessary to the decision of tins case.

The judgment must be reversed and a new trial ordered; ■and under the stipulation, disbursements of appeal, only allowed to appellant.

Van Hoesen, J., concurs.  