(dissenting)—The property was destroyed through no fault of the bailee. The contract between the parties provides that the bailee will
“ . . . return to First Party [bailor] the same in good mechanical condition, save and except the usual wear and depreciation as may be caused by reasonable use and wear thereof ...”
Does this mean that a bailee is liable as an insurer of personal property regardless of what happens to it? I do not think so.
I recognize that the authorities are divided on this question; but I believe that the weight of authority and the more persuasive decisions of appellate courts support a conclusion contrary to that reached by the majority opinion. The authorities are collected in an exhaustive annotation, “Bailee’s express agreement to return property, or to return in a specified condition, as enlarging his common-law liability,” appearing in 150 A. L. R. 269-305.
The particular provision of the contract before us expresses the same obligation which arises from the facts of the transaction at common law, and implies the continued *844existence of the chattel. Of course, a bailee may enlarge his responsibility by contract, express or implied, but such liability should not be enlarged by interpretation beyond the common-law limits of a bailee’s responsibility, when the contract expresses only the same liability as that which attaches to the transaction by the common law.
Metropolitan Park Dist. v. Olympia Athletic Club, 42 Wn. (2d) 179, 184, 254 P. (2d) 475 (1953), can be distinguished. Therein, the contract of bailment (established by a letter) provided that the bailee would “use every possible care.” This was an agreement to exercise a higher degree of care than that fixed by law. In fact, the opinion states:
“It is our opinion that the letter recognized a duty beyond that of common-law bailment, amounting to an insurer’s liability.”
The Metropolitan case, supra, must be confined to its own facts, from which this court concluded that the bailee had assumed a duty beyond that of a common-law bailment. It is distinguishable from the instant case.
It is true that the bailee might insure himself against loss of the property by fire, but situations may arise against which he cannot insure. For example, under the contract of bailment as quoted, is the bailee liable as an insurer when he cannot deliver the chattel upon the due date, because it has been taken from his possession, under authority of valid legal process, but through no lack of diligence on his part; or, because he has already delivered it to the rightful owner on demand?
The rule established by the majority opinion would strip a bailee of all legal defenses for failure to redeliver the property, even though the power to return it no longer exists, through no fault of his.
If the intention of the parties, at the time they entered into the transaction, is to be given any weight, then the fact that the bailor insured the property against loss by fire, seems significant.
For these reasons, Í dissent.
Finley, J., concurs with Weaver, J.