Delmour v. Forsythe

SEABURY, J. The evidence in this case, given on the part of the plaintiff, and which was credited by the trial justice, shows that the plaintiff, accompanied by a lady friend, visited the defendant’s store to purchase a shirt waist. After examining several, she selected about a dozen in the general show room. These were carried by a saleslady, an employé of the defendant, to a small fitting room, into which she was followed by the plaintiff and her friend. As they entered the fitting room, the plaintiff removed her watch, which was attached to her coat by a gold pin. She then removed her coat, and laid it, together with the watch, upon a small table standing in the room. This was done in the presence and full view of the saleslady, who told the plaintiff to place her things upon this table while she removed her waist for the purpose of being fitted. After a waist had been selected and fitted, by a fitter who subsequently entered the room, the plaintiff put on her coat, but could not find her watch, and a diligent search failed to disclose it. This action was brought to recover its value. Upon the facts proved, it is evident that the defendant was under the duty of exercising some degree of care in reference to the plaintiff’s coat and watch. The court was justified, upon the evidence, in finding that the defendant exercised no care whatever in the premises. In Bunnell v. Stern, 122 N. Y. 539, 25 N. E. 910, 10 L. R. A. 481, 19 Am. St. Rep. 519, the court said: “Under these circumstances we think that it became their (defendants’) duty to exercise some care for the plaintiff’s cloak, because she had laid it aside on their invitation and with their knowledge, and without question or notice from them had put it in the only place that she could. The considera [650] tian for the Implied contract imposing that duty resided in the situation of the plaintiff and her property, for which the defendants were responsible, and in the chance of selling the garment which she had selected.” In Wamser v. Browning, King & Co., 187 N. Y. 87, 79 N. E. 861, 10 L. R. A. (N. S.) 314, it was clearly intimated that the defendant would have been held liable if the clerk had been attending the customer—• “and the clothing had been laid aside by his invitation before his eyes, so that he had an opportunity to watch and care for it.” I think that the evidence in this case presented merely a question of fact, and that the decision of the learned trial justice is sustained by the evidence. The evidence as to the value of the watch and pin was sufficient to sustain the award which the court below matie. Judgment affirmed, with costs, PAGE, J., concurs.