J. M. Brown, Inc. v. W. P. Fuller & Co.

[677]

LENNON, P. J.

This was an action to recover the sum of $4,319.67 for damages alleged to have been suffered by the plaintiff through the defendant’s alleged breach of contract. The trial court gave judgment for the plaintiff in the sum of one thousand six hundred dollars from which the defendant now appeals.

In substance the facts of the case are these. By oral agreement the appellant chartered the plaintiff’s steamer “Napa City” for a certain period and rate of compensation, agreeing to return the vessel at the end of the period in the same condition it was in at the time of the charter except wear and tear. During the period of the hiring and while under the control of the appellant the “Napa City” became wrecked and sunken. The respondent sustained losses as the result of the disablement and sinking of the vessel in the sum found and fixed by the judgment. The primary point presented for consideration and determination is whether or not the appellant, by the terms of the agreement, assumed the risk and responsibility of an absolute insurer rather than that of an ordinary bailee. The appellant contends that, by the terms of the contract, it assumed no such responsibility or liability, and that, therefore, the trial court erred in substantially so finding.

We are of the opinion that there is nothing in the wording of the agreement that may possibly be construed as meaning that the appellant promised to return the “Napa City” to its owners in good condition less wear and tear—at all events. We hold with the appellant that the stipulation insisted upon by the respondent—that the appellant should return the steamer in good condition less wear and tear—is merely the expression of what the law would have implied in its absence (Civ. Code, secs. 1928, 1929, 1955); and certainly it cannot be justly or logically urged that by expressing in his agreement what the law implies the ordinary bailee increases his liability to that of an absolute insurer. It is well settled in this connection that unless there be an explicit agreement to assume an insurance risk, the bailee cannot be held liable for one. We are constrained to hold, therefore, that where nothing more appears than a mere promise to return the thing hired in good condition less wear and tear at a specified time, it does not and cannot be said to import a contract on the part of the hirer to insure it against inevitable casualties