Zell v. Dunkle , 156 Pa. 353 ( 1893 )

Opinion by

Mr. Justice Williams,

In the spring of 1889 the plaintiff purchased at public sale an engine and boiler. The boiler was out of repair and unfit for use. The defendants had a shop at Mount Joy, Lancaster county, at which they made and repaired steam boilers. The plaintiff sent the boiler he had purchased to the defendant’s shop for repairs in the early part of May. They engaged to make the repairs and have the work done by the first day of June. The repairs were not made at the. time agreed o.n, and before they were made, viz., on the twenty-second day of June, 1889, the shop was destroyed by an incendiary fire, and the plaintiff’s boiler was so injured by the heat as to be rendered practically worthless.

This action was brought to recover the value of the- boiler. At the trial, the learned judge of the court below entered a compulsory nonsuit, for the reason that the cause of action was one that could not be recovered for in assumpsit. This ruling is the error assigned. The contract between these parties was for the performance of certain mechanical labor and the supply of necessary materials therefor, in the repair of the boiler. This kind of an agreement is described by text writers as loeatio operis. The subject of the contract is labor, to be expended by the workman on the property of the hirer, for an agreed price, or upon a quantum meruit. The possession of the article on which the labor is to be expended passes to the workman for the purposes of the contract. Its storage, from the time the article is received until the work upon it is completed, is a necessary incident of the undertaking of the workman. The obligations imposed by the locatio operis and capable of enforcement by an action on the contract are as follows: (a) To do the work which is the subject of the undertaking; (b) to do it within the time agreed on, or within what may be, in view of all the circumstances, a proper time ; (o') to do it in a proper manner; (d) to surrender the property on which the labor has been expended on payment for the work done.

This action is not brought to enforce either of these obligations, but, as is stated in the testimony of the plaintiff, and in the declaration on file, it is brought to recover the value of the boiler destroyed in the fire, on the theory that the defendant’s negligence caused the loss. If there had been no previous contract relation between the parties, damages occasioned by the negligence of the defendant could have been recovered only in an action on the case ; but the fact that the boiler came into the possession of the defendants by reason of, or as incidental to, the contract for repairs to be made upon it, imposed the duty upon the defendants to exercise ordinary care for the safely and preservation of their customer’s properly. By receiving the boiler into their possession for the purpose of repairing, they must be held to have subjected themselves to an undertaking, implied from the nature of the express contract for repairs, to do what in good faith and common fairness ought to be done for the protection of their customer’s goods. If they have failed in the performance of the duty imposed by this implied undertaking, an action of assumpsit will lie. At the same time it is true that if the failure involves a tort, such as the willful destruction of his customer’s goods, oí' a conversion of them to his own use, he may be proceeded against, at the election of his customer, for the tort and in an action ex delicto. In Reeside’s Ex. v. Reeside, 49 Pa. 322, it was held that when a duty arises out of an implied undertaking to do an act requiring skill or fidelity an action of assumpsit will lie to enforce the duty, or an action on the case for the tort, involved in the breach of duty, may be sustained. The liability of a carrier is analogous to that of the mechanic in this case. His undertaking is to carry and deliver to the consignee. If he fails to deliver the article he is liable on his contract, whether the cause of his failure be his negligence, his fraud, or his crime, for his contract is broken in either case. But if the cause of his failure be his own fraud or felony, he may, at the election of his customer, be proceeded against for his tort in any appropriate form of action ex delicto. Hunt v. Wynn, 6 Watts, 47, is among the cases in which this doctrine has been laid down. Upon the facts of this case we think assumpsit was a proper form of action, and the learned judge erred in entering the non-suit, for the reason given by him that the action should have been an action of-trespass on the case.

But was the plaintiff entitled to go to the jury upon the case made by him ? The care which the defendants were, under an implied undertaking, to exercise for the safety of their customer’s goods, was ordinary care only. If the article be lost by theft, fire, or otherwise, notwithstanding the exercise of ordinary care, the loss falls on the owner of the goods and not on the workman. If the loss be due to the want of ordinary care, then it falls on the workman : 1 Bouv. Inst. § 1007. The burden of showing negligence is on him who alleges it. It was the duty of the plaintiff to show, affirmatively, conduct on the part of the defendants that amounted to a breach of the implied undertaking to use ordinary care for the safety of the boiler left with them for repairs, and failing in this the court was right in taking the case from the jury. The evidence show ed that the boiler was stored in a building used for the storage of engines and boilers belonging to the defendants, and cared for in the same manner that their own property of the same kind was cared for. The effect of this evidence was not to prove, but to disprove negligence. The only item of evidence from which it is alleged negligence could be found was that no watchman was employed at the storage building during the night to protect it from incendiary fires. Whether this was required by ordinary care did not appear. There was no proof of the practice of other persons engaged in the same business; no testimony by machinists or other iron workers that ordinary care required that such buildings and such articles should be guarded at night by a private watchman to protect them from fire. It is very plain that ordinary diligence or care is that measure of care and. diligence ordinarily employed in a given business. What measure of care is ordinarily employed is a question to be determined from the evidence. When this is determined, the next question is whether the defendant has exercised the proper measure of care in the case under consideration.

If he has not done what is usually done by persons following his occupation, for the safety of his customer’s goods,,but has neglected precautions commonly made use of for that purpose, then he may justly be called on to make good his customer’s loss. But if he has stored and cared for his customer’s goods in the same manner that he has stored and cared for bis own, and a common disaster destroys both, it ought to require clear proof of the omission of precautions commonly taken by other persons in the same or similar trades to justify a recovery.

Upon the whole case as it stood when the plain tiff closed his testimony, there was not such evidence before the court and jury as to justify a verdict for the plaintiff, and for this - reason the nonsuit was properly entered.

The judgment was right, though the reason was wrong.

The judgment is affirmed.