The opinion
HURD, J.
dissents.
I respectfully dissent from the majority opinion because upon a review of the evidence as disclosed by the bill of exceptions, it appears to me that this case turns primarily on a question of fact. The trial court found as indicated by its opinion that these were two separate contracts. I think that this finding is in accord with the evidence and certainly not contrary to the manifest weight of the evidence. As it appears to me there were here two separate *75 contracts in respect of the bailment of the garment in question; one for repairs (Locatio rei operis fociende) and the other for storage only (Locatio rei Custodiae). In respect of the bailment for storage there was a contract limiting liability, while in respect of the bailment for repairs there was no _ such contract. The garment was lost before it ever reached the place of storage, so that the contract limiting liability for negligence has no application. That the limitation of liability related to storage only is indicated by the title of the storage receipt, viz.:
“FUR STORAGE RECEIPT AGAINST FIRE, MOTH AND ALL OTHER LOSS OR DAMAGE (Except Action of Time) ”
On the admission of the defendant as appears in the record, it was not the custom or practice of the defendant to issue a storage policy limiting liability when a garment was delivered for the purpose or repair or alteration, and none was issued covering the repairs or alteration in this case.
It clearly appears from the record that the contract for remodeling had its inception in the Spring of 1945 when defendant company undertook to remodel the coat at a cost to the owner of over six hundred dollars. At that time it was agreed that remodeling had not been done to the satisfaction of the owner and that to complete the job satisfactorily it would be necessary to alter the garment to fit properly around the shoulders. It was then agreed that the coat would be taken out for wear during the winter and returned in the Spring to complete the repairs and for cold storage during the summer season. Accordingly, the coat was brought in during the month of March, 1946 for two purposes: (1) to complete the repair in accordance with the agreement for which payment had already been made; and (2) for cold storage after the repair was completed.
The record shows that at the time of the delivery of the coat to the bailee in 1946, the work room on the second floor of bailee’s place of business was being redecorated and that the coat was temporarily placed in a downstairs vault pending completion of the work of redecorating. It was then that the coat was taken from the vault in the basement to the work shop on the second floor for the purpose of completing the remodeling and repairs of the coat in accordance with the agreement of the parties previously made as indicated hereinabove.
The record further shows that when the repairs were completed the coat was placed on the dumb waiter at the work *76 room level for transport to a different building, namely the Sheriff Street Market House, there to be placed in cold storage. As stated by the trial court, the trail of the coat stopped at this point. Consequently, it was never given a “rod number” and never reached cold storage.
The trial court found that it was in the performance of this contract for remodeling and repairs that the loss of the garment occurred and that, therefore, the contract of limitation of liability for storage had no application.
The evidence indicated that the defendant bailee in connection with its business of selling and repairing fur also engaged in the storage of furs for hire, hence we have here the two classes of bailment hereinbefore described.
In the case of Aetna Casualty & Surety Co. v. Higbee Co. 80 Oh Ap 437, this court had before it a factual situation somewhat analogous to the facts in the instant case. While the syllabus of that case deals primarily with the proposition of conversion, yet the issue of separate contract appears in that case as is shown by the language of Skeel, J, speaking for a unanimous court, commencing at page 445 as follows:
“One other consideration must be given to the facts as applicable to the limitation of liability contained in the storage contract between The Higbee Co. and Mrs. Goldsmith. The storage contract was concluded on May 16, 1944, the coat having been delivered to defendant on May 2, 1944. The contract of storage of May 16, 1944 wherein defendant agreed to store the coat for $2.00 contained the limitation of liability of $100.00 for each article stored. Subsequent to the date of this contract, to-wit, Aug. 30, 1944, for the consideration not to exceed $26.00, The Higbee Company agreed to make certain repairs and to clean the coat, which charge was to be in addition ‘to sales tax and the regular storage charge’. The evidence therefore tends to establish that the contract for repairs was a new contract entered into entirely independent of the contract for storage. It was in the performance of this contract that The Higbee Company delivered the coat to The New Process Fur Cleaning Company from whose possession it was stolen. It seems therefore if it be established that the contract for repairs was separate and distinct from the storage contract, that the limitation of liability had no application to such contract for repairs.”
As stated in this case the trial court found that the contract for repairs was separate and distinct from the storage *77 contract and that the limitation of liability had no application to the contract for repairs. Inasmuch as the trial court also found, very properly it seems to me, under the evidence, that the loss did not occur under the contract or bailment of storage but under the contract for alterations and repairs, I cannot conclude that this finding was contrary to the manifest weight of the evidence. It is therefore my view that the judgment should be affirmed.