dissenting.
According to the agreed facts, we are confronted with two limitation of liability statements. One appears in print on the side of a small box containing a roll of Kodak film, and the other appears on the reverse side of a receipt and claim check measuring one inch by two inches. Each purports to limit liability for damage or loss of film during processing due to “negligence or other fault.” With regard to the limiting statements on the box it was stipulated as follows:
“13. At the time that Carr purchased the film, he did not read the foregoing notice, but Carr by reason of both his experience as an attorney and his experience as an amateur photographer for over 12 years knew that all Eastman Kodak film and all film of other manufacturers is sold in packages on which there is printed a limitation of liability similar or identical to the Eastman Kodak limitation of liability.”
With regard to the limitation on the processing claim check it was stipulated as follows:
“22. Carr did not read the reverse side of any of the receipts and Hoosier Photo did not call the words imprinted thereon to his attention or otherwise discuss the matters referred to thereon with Carr. Carr first became aware of such specific language subsequent to the time he filed this civil action, although Carr knew that Hoosier Photo, Eastman Kodak, and all other processors of film to Carr’s knowledge give to their customers at the time of accepting film for processing, receipts on which there are printed limitations of liability printed on each receipt received by Carr from Hoosier Photo.”
The trial court found that these limitation of liability statements were not binding on plaintiff Carr. In so doing he stated:
“5. A professional bailee may not limit his liability by a mere notice posted on his premises or printed on a receipt, claim check, or work order. The printing on Eastman Kodak’s film packages and the printing on the receipts which the plaintiff received from Hoosier Photo are mere notices.
6. It cannot be presumed that plaintiff in delivering his film for processing intended to waive his legal rights; the presumption being quite as strong plaintiff intended to insist upon them. A notice or statement of terms, such as the ones here in this case, is at most only a proposal. Such a notice or statement of terms does not bind a bailor delivering property to a bailee unless the former assents to the terms proposed. Here there was no evidence of any such assent.”
As a general rule the law does not permit professional bailees to escape or diminish liability for their own negligence by posting signs or handing out receipts. General *457Grain, Inc. v. International Harvester Co., (1968) 142 Ind.App. 12, 232 N.E.2d 616; Keenan Hotel Co. v. Funk, (1931) 93 Ind.App. 677, 177 N.E. 364. The statements on the film box and claim check used by Kodak and Hoosier Photo are in all respects like the printed forms of similar import which commonly appear on packages, signs, chits, tickets, tokens and receipts with which we are all bombarded daily. No one does, or can reasonably be expected, to take the time to carefully read the front, back, and sides of such things. We all know their gist anyway.
The distinguished trial judge below characterizes these statements before us as “mere notices” and concludes that plaintiff below did not “assent” to them so as to render them a binding part of the bailment contract. Implicit here is the recognition of the exception to the general rule regarding such notices, namely, that they may attain the dignity of a special contract limiting liability where the bailor overtly assents to their terms. General Grain, Inc. v. International Harvester, Co., supra. To assent to provisions of this sort requires more than simply placing the goods into the hands of the bailee and taking back a receipt or claim check. Such acts are as probative of ignorance as they are of knowledge. However, according to the agreed statement of facts, plaintiff Carr “knew” by past experience that the claim checks carried the limitation of liability statements, but he did not read them and was unaware of the specific language in them. There is nothing in this agreed statement that Carr recalled this knowledge to present consciousness at the time of these transactions. Obviously we all know many things which we do not recall or remember at any given time. The assent required by law is more than this; it is, I believe to perform an act of understanding. There is no evidence of that here.
The evidence presented tending to support the award of damages included an actual uncontroverted amount of $13.60 thereby precluding mere nominal damages. There was further evidence that 150 exposures were lost. The actual award of $1,014.60 amounted to between $6.00 and $7.00 per picture. Carr provided evidence that the pictures were of exceptional value to him, having been taken in a once-in-a-lifetime European trip costing $6000, including visits arranged there before hand with relatives. The award was fair and and just compensation for the loss of value to the owner and does not include sentimental or fanciful value.
The trial court judgment should be affirmed.