(dissenting)—While I recognize that the authorities are divided on the question presented in this case (see note in 150 A.L.R. 277, quoted in the majority opinion), I cannot find in the language used in the letter written by the Olympia Athletic Club, when viewed in the light of the surrounding circumstances, an intention to insure the bleachers against any and all hazards whatever, regardless of negligence.
Respondents agree “to use every possible care in handling” the bleachers and to return them in the same condition as they received them. It seems to me that if it had been the intention of the parties that respondents were to insure the bleachers against such hazards as fire, earthquake, hurricane, acts of God and the public enemy, specific provision would have been made to that effect in their letter.
Apparently, this court has not been called upon to interpret language similar to that used in this case. Our decisions in Alaska Coast Co. v. Alaska Barge Co., 79 Wash. *185216, 140 Pac. 334; Bratt v. Poole, 105 Wash. 565, 178 Pac. 638; and Locomotive Exchange v. Rucker Brothers, 106 Wash. 278, 179 Pac. 859, 184 Pac. 848, to the extent that they have bearing on our problem, indicate a trend contrary to the majority opinion.
In Cary-Davis Tug & Barge Co. v. Fox, 22 Fed. (2d) 64, the circuit court of appeals for the ninth circuit, the defendants had contracted to install two water tanks in plaintiff’s tug. A fire which was held to be due to causes beyond the defendant’s control damaged the tug during the progress of the work. The agreement between the parties included the following provision:
“ ‘The whole job will be completed by the contractor and the tug returned to the owners in as good condition as it is to-day. Any parts removed by the contractor in order to do this work will be replaced by him. If the contractor by any chance damages the tug in the performance of this work, the damage will be righted by the contractor.’ ”
In disposing of the contention that the defendants were liable even though not negligent, Judge Rudkin, speaking for the court, said:
“Nor is there any merit in the contention that the appellees are liable, regardless of negligence, under the terms of the contract. No doubt a bailee may enlarge his liability by contract, but the provision that the tug should be returned in as good condition as it was that day is a familiar one in leases, charter parties, and other contracts, and almost without exception the courts have held that such provisions are simply declaratory of the obligation implied by law.”
I think that the letter written by the respondents in this case is merely declaratory of the bailee’s obligation to use reasonable care in the preservation of the bleachers and cannot be interpreted as imposing upon the bailee the obligation of an insurer against fire or other similar risks. Since the complaint contained no allegation of negligence upon the bailee’s part, the demurrer was properly sustained.
The judgment should be affirmed.
March 31, 1953. Petition for rehearing denied.