Kolt v. Cleveland Trust Co.

As I understand the views of the Supreme Court on the subject, there is no legal impediment against giving effect to the special contracts that limit the degree of liability of an ordinary bailee for loss occasioned by its negligence, but a bailee by special contract may not exonerate itself from liability occasioned by its own negligence.

In Hotels Statler v. Safier, 103 Ohio St. 638, 646, 134 N.E. 460, 22 A. L. R., 1190, the following statement appears in the opinion by Jones, J.:

"Ordinarily in bailments the parties may diminish the liability of the bailee by special contract, provided the contract is not in violation of law or of public policy and does not relieve the bailee of negligence."

Immediately following the above, Judge Jones added:

"But in the instant case no such special contract was made, and in the absence of a special agreement the law of bailments fixes the degree of the bailee's liability."

This latter statement implies clearly that where no prohibitions of law or considerations of public policy intervene, parties to a bailment may by special contract limit the degree of the bailee's liability for its own negligence. However, the express declaration against the validity of a contract that exempts a bailee from liability for negligence, which appears in the Statler case, is approved and amplified in Agricultural Ins.Co. v. Constantine, 144 Ohio St. 275, 58 N.E.2d 658, where the court at page 283 of the opinion said:

"`It is now apparently well settled that a bailee for hire cannot, by contract, exempt himself from liability for his own negligence or that of his agents or servants [Franklin v.Southern Pacific Co., 203 Cal. 680, 265 P. 936, 59 A. L. R., 118; Hotels Statler Co. v. Safier, 103 Ohio St. 638,134 N.E. 460, 22 A. L. R., 1190; Scott Auto Supply Co. v. McQueen,111 Okla. 107, 226 P. 372, 34 A. L. R., 162; Simms v.Sullivan, 100 Ore., 487, 198 P. 240, 15 A. L. R., 678;Sporsem v. First National Bank of Poulsbo, 133 Wn. 199,233 P. 641, 40 A. L. R., 854].'"

In the case last cited in the above quotation, the bank leased a safe deposit box to the plaintiff. The contents of the box were lost through a burglary. The bank, among other defenses, claimed exemption from liability by virtue of the clause in the contract with the depositor that it "assumes no liability whatever for any loss or damage that may occur." The court answered this contention with the statement that "it is now apparently well settled that a bailee for hire cannot by contract exempt himself from liability for his own negligence."

In the instant case, the clause relied on by the bank was, "The undersigned expressly understands and agrees that each use or attempted use by the undersigned of the night depository facilities shall be at the undersigned's sole risk at all times * * *."

If there be any significant difference between the purport of this provision and the exculpatory clause in the Sporsem case, I am unable to perceive it.

In Agricultural Ins. Co. v. Constantine, supra, the exculpatory clause read.

"No attendant on duty after regular closing time. Cars left after closing at owner's risk. This station will endeavor to protect the property of its patrons, but it is agreed that it will not be liable for loss or damage of cars, accessories or contents, from whatever cause arising."

Observing that the above language is broad enough to avoid liability for wanton or wilful misconduct of the bailee the court said:

"The attempted limitation of liability here under consideration cannot be upheld either upon reason or authority, whether it applied during regular business hours or only after closing time."

The statements in the opinions of the Safier and Constantinecases, as hereinabove quoted, were not carried into the syllabi of the cases in which they appear. But they are authoritative expressions of the court on important legal principles. Unless they are to be rendered devoid of meaning they ought to serve as reliable guides to proper judicial action in cases where the principles discussed are decisive of the issues presented. If this be not so, it is for the Supreme Court and not this court to say.