Petty v. Overall & Moulton

JUDGE, J The facts disclosed in the answer of the guarnishee, show that he was the pawnee of the watch and chain, and that they were stolen from his house, together with other articles of his own and of his wife and daughter, of similar character and of greater value ; and that all were stolen from the same place, and at the same time. The question is, whether, under the particular circumstances of the case, as disclosed by the answer, the loss of the watch and chain by theft, exonerates the pawnee from liability therefor ? As to the liability of such a bailee, if the pledge be stolen, the rule seems to be now well settled, that he is not absolutely liable, nor absolutely excusable. If the theft is occasioned by his negligence, he is responsible; if without any negligence, he is discharged — such a bailee being bound for ordinary care, and answerable for ordinary neglect. — Edwards on Bailments, p. 223, 225; Story on Bailments, § 338 ; 2 Kent’s Com., m. p. 581. The conclusion can not be legitimately drawn from the answer of the garnishee, that the theft of the watch and chain was the result of negligence on his part; the contrary, we think, sufficiently appears. If the plaintiffs below believed the answer to be untrue, they might have contested it under section 2974 of the Bevised Code. But upon the answer as it stands, the garnishee was entitled to be discharged ; and the court erred in rendering judgment against him. Beversed and remanded.