25 N. E. 869; Pittsburgh, C. C. & St. L. R. Co. v. Higgs, 165 Ind. 694, 4 L.R.A. (N.S.) 1081, 76 N. E. 299; Camp v. Hartford & N. Y. S. B. Co. 43 Conn. 333; Davis v. Chicago, M. & St. P. R. Co. 93 Wis. 470, 33 L.R.A. 654, 57 Am. St. Rep. 935, 67 N. W. 16, 1132, 10 Am. Neg. Cas. 507; Lancaster County Nat. Bank v. Smith, 62 Pa. 47, 1 Am. Neg. Cas. 570; Memphis & C. R. Co. v. Jones, 2 Head, 517; 3 Am. & Eng. Enc. Law, 2d ed. 750.

Then § 5206, Comp. Stat. 1921, supra, fixed the liability of a bailee. for hire. We think that, under this statute and the authorities cited, it was not competent for the parties to contract for a less degree of care than fixed by statute, nor could they by contract limit the liability of the defendant to wilful destruction of or gross negligence with reference to the car. Under the clusion of- statute quoted and notice by bailee. authorities cited it was not error to exclude evidence of a contract reducing the defendant's liability to a less degree than ordinary care.

Evidence-ex

5. Defendant assigns error of the court in refusing its requested instruction No. 1. This requested instruction had the effect of advising the jury that the relation of bailor and bailee existed between the plaintiff and defendant, and that the defendant was required to use ordinary care in preserving the bailed property from destruction, and that, if the property was destroyed by accident, or it was unavoidable by the use of ordinary care, the defendant would not be liable and the verdict of the jury should be for the defendant. The main point in the instruction was to limit the liability of the defendant to the use of ordinary care. In instruction No. 6 of the court's instructions the court instructed the jury as follows: "You are further instructed that the fact that the car was burned while in the custody of the defendant does not raise any presumption of negligence on the part of the defendant, but the

burden of proof is upon the plaintiff to prove that said fire was caused by the negligence of the defendant in not using ordinary care to prevent it."

struction.

We think this instruction sufficiently covered the point, and clearly put the burden upon the plaintiff to show negligence upon the part of the defendant in failing Trial-refusal to use ordinary care, of duplicate inThe point being covered by the court's instructions, it was not error to refuse the requested instruction. Harwell v. Duncan Bros. 80 Okla. 74, 194 Pac. 115; Badger Oil Co. v. Clay, 83 Okla. 25, 200 Pac. 433; Midland Valley R. Co. v. Lawhorn, 81 Okla. 288, 198 Pac. 586.

6. The defendant complains of the giving of court's instruction No. 8, which had the effect of saying that, if the jury should find that the plaintiff had delivered his car to defendant under contract for the purpose of having the car painted, and when he called for the car it was not delivered to him, plaintiff had made out a prima facie case, and the burden then devolved upon the defendant to explain the failure to deliver in a manner consistent with the required degree of care. This instruction is complained of because it had the effect of placing the burden upon the defendant to free itself of negligence. We think the instruction complained of did not have such effect, but had the effect of saying to the jury that when the defendant failed to return the car it was incumbent upon the defendant to show a loss of the car by means not within control of the defendant, as by fire or theft, which would relieve the defendant of the presumption raised by the prima facie case made by plaintiff. The instruction complained of, standing alone, might be subject to the criticism leveled at it, but when taken in connection with the other instructions we think it could not have been misleading to the jury as to where the burden of proof lay. The court instructed the

The general rule applied in the cases passing on the question is that a bailee has no right to limit the degree of care to less than that fixed by statute. Interstate Compress Co. v. Agnew (1919) 168 C. C. A. 199, 255 Fed. 508, reversed on other grounds in (1921) 276 Fed. 882; Morse v. Imperial Grain & Warehouse Co. (1919) 40 Cal. App. 574, 181 Pac. 815; Renfroe v. Fouche (1921) 26 Ga. App. 340, 106 S. E. 303; Inland Compress Co. v. Simmons (1916) 59 Okla. 287, 159 Pac. 262, 14 N. C. C. A. 379. See the reported case (SCOTT AUTO & SUPPLY Co. v. MCQUEEN, ante, 162). Compare Gesford v. Star Van & Storage Co. (1920) 104 Neb. 453, 177 N. W. 794.

Thompson v. Mobile Light & R. Co. (1924) - Ala. —, — A.L.R., 101 So. 177, declares generally that a bailee cannot contract against his own negli gence though the court ultimately held that the facts alleged did not show a bailment.

Thus, the court in Interstate Compress Co. v. Agnew (Fed.) supra, con

sidered an Oklahoma statute said to be declaratory of the common law, and providing that a bailee for hire must use at least ordinary care for the preservation of the thing bailed. It appeared that the defendant, on receiving a large quantity of cotton to be stored, issued to the plaintiff a receipt containing a provision that the defendant would not be responsible for losses due to fire, flood, or other agencies, unless caused by the wilful act or gross negligence of the company. Subsequently the cotton was destroyed by fire in the defendant's warehouse. The court held that the defendant could not escape liability by reason of the clause in the receipt, but must show that ordinary care was exercised.

It appeared in Morse v. Imperial Grain & Warehouse Co. (1919) 40 Cal. App. 574, 181 Pac. 815, that the defendant, upon receiving a quantity of wool for storage in his warehouse, issued to the plaintiff a receipt stating that the bailment was at the risk of the bailor, and that the warehouse

company would not be responsible for loss occasioned by fire or the elements. When redelivery was demanded by the plaintiff, part of the wool could not be delivered, due to alleged theft. A statute provided that a warehouseman might insert in a receipt any terms or conditions, provided they did not impair his obligation to exercise that degree of care in the safe-keeping of goods intrusted to him which a reasonably careful man would exercise in regard to similar goods of his own. The court held that the defendant could not, by the provision in the warehouse receipt, relieve himself from liability for loss resulting from a failure to exercise the statutory degree of

care.

It was held in Inland Compress Co. v. Simmons (1916) 59 Okla. 287, 159 Pac. 262, 14 N. C. C. A. 379, that a compress company, as bailee for hire to store cotton, could not limit its statutory duty of ordinary care by stipulating in its regular compress ticket that it would not be liable for loss by fire, flood, or other agencies, except caused by the wilful act or gross negligence of the company. The plaintiff delivered to the defendant a quantity of baled cotton to be stored for hire. The statute provided: "A bailee for hire must use at least ordinary care for the preservation of the thing bailed." On delivery of the cotton to the compress company, the customary compress ticket was issued, containing a stipulation that the compress company would not be responsible for loss by damage from fire, flood, or other agencies, unless caused by its own gross negligence or wilful act. During the period of storage the defendant removed the bales of cotton from the 2x4's which kept them off of the damp concrete floor, and placed it to one side on the floor and under leaky eaves, whereby the cotton absorbed water and was damaged. The court, in declaring the contract provision to be invalid, said: "The terms which public policy and legislation of the state impose are not to be overleaped by contractual relations, and, if so, the contract will be disregarded and declared void, and the bailee held in

has provided that a bailee for hire must use at least ordinary care for the preservation of the thing bailed, and, while this provision of the statute may be considered as a declaration of the general law on the subject of bailment, yet it also indicates the fixed, definite, and declared policy of the state with reference to the degree of care that all bailees for hire must use towards property intrusted to their We conclude that it would be against public policy in this state to permit the defendant in this case, as a bailee for hire, to contract in such manner as to relieve it of any responsibility for its own negligence, and that the provision of the receipt issued to the plaintiff in error, attempting to relieve the company from any liability on account of damage, the result of its negligence, is void as against public policy."

care.

So, in the reported case (SCOTT AUTO & SUPPLY CO. v. MCQUEEN, ante, 162), wherein it appeared that the plaintiff left his auto at the defendant's garage to be painted, and the defendant had posted a large sign in a conspicuous place in the garage denying responsibility for loss by fire of cars left there, it is held that the defendant, being a bailee for hire, could not by notice or contract release itself from the duty imposed by statute, of exercising ordinary care for the preservation of the property bailed.

And in Renfroe v. Fouche (1921) 26 Ga. App. 340, 106 S. E. 303, the court held that an auto repair man, being a bailee for mutual benefit, could not limit his statutory duty to exercise ordinary care, by posting a notice in his garage to the effect that he would not be responsible for losses due to fire or theft. It appeared that the plaintiff left his automobile in the defendant's garage for repairs. The plaintiff had posted a notice denying responsibility for losses of articles by fire or theft. The Georgia statute provided that the bailee was bound to exercise ordinary care to protect prop

erty held under a mutual benefit bailment. While the automobile was in the garage, it was stolen by an employee of the defendant.

But in Gesford v. Star Van & Storage Co. (1920) 104 Neb. 453, 177 N. W. 794, a contrary result was reached. It appeared that the defendant, in accepting apples for storage in his warehouse, informed the plaintiff that he had no facilities in his warehouse whereby the temperature could be regulated to prevent freezing. However, the plaintiff inspected the warehouse and selected a part of the basement in which he directed the apples to be stored. The court held that the plaintiff had impliedly agreed to assume the risk, and that such an agreement was not invalid as exempting a bailee from liability for negligence contrary to statute. In the language of the court: "The defendant's warehouse was not equipped for heating, and it was not in the regular line of its business to undertake to store property the preservation of which required the temperature to be regulated. It was therefore entitled to make its contracts conform to the limitations of its equipment and to confine them within the scope of its ordinary business. No rule of law governing bailments would

forbid the defendant to make a contract to protect itself from liability for damage arising from some cause that could not be guarded against by the use of the ordinary means and facilities at its disposal. In insisting upon the condition that it should not be responsible for freezing, the defendant did not thereby stipulate for exemption from liability for negligence. It merely foresaw and stipulated against a possibility which it was powerless to avert without other and greater facilities than it possessed. By assenting to that condition and assuming the risk of freezing, the plaintiff, in effect, agreed that the defendant's duty of reasonable care for the protection of the property should be limited to the means actually at its disposal in the ordinary course of its business, taking into consideration the lack of facilities to heat the warehouse. There is nothing in the record to indicate that anything that could have been done was not done to protect the apples, except, as the plaintiff suggests, that stoves might have been put up in the basement. Under the circumstances, however, we cannot say that the failure of the defendant to set up stoves constituted negligence." R. E. La G.

V.

Ohio Supreme Court

April 29, 1924.

Headnotes by the COURT.