APPEAL by the defendant, the Brooklyn Telegraph and Messenger Company, from a judgment of the County Court of Kings county in favor of the plaintiffs, entered in the office of the clerk of said county on the 9th day of August, 1911, upon the special verdict of a jury, and also from an order entered in said clerk's office on the 11th day of August, 1911, denying the defendant's motion for a new trial made upon the minutes.
Francis Raymond Stark [George H. Fearons and Darwin J. Meserole with him on the brief], for the appellant.
Charles J. Ryan, for the respondents.
The complaint in this action alleges that 'on or about the 13th day of October, 1905, the plaintiffs under and by a certain writing, and upon a consideration therein specified, did employ the defendant herein to install upon and equip the store premises occupied by them, No. 895 Broadway, City of New York, Borough of Brooklyn, its system of electric wiring and to connect the same with its office in such manner that when the premises were entrusted to its care any breaking or entry thereof would be immediately communicated to the said office by means of certain alarm bells; and they did also employ the defendant to watch and vigilantly observe said signals and immediately upon any such signal being received to investigate the occasion thereof and by such means to safekeep and guard and protect the plaintiffs' premises and their goods therein.' It is then alleged that the defendant accepted this employment; that the plaintiffs performed all the conditions of said contract of employment, and that the 'defendant did so carelessly and negligently maintain said wiring and signals, and did so negligently and carelessly watch and observe and fail to watch and observe the said signals, and did so negligently and carelessly perform its duties of guarding and protecting plaintiffs' premises and their goods therein that by reason thereof, and on the 18th day of March, 1906, and while said premises and goods were in defendant's care, certain persons, to plaintiffs unknown, broke and entered plaintiffs' premises through a trapdoor therein and included within the defendant's
system of wiring and signals, and stole and carried away the plaintiffs' goods; that owing to the aforesaid carelessness and negligence the said breaking and entering was unimpeded and uninterfered with, and the defendant failed and neglected to guard and safekeep the plaintiffs' store and goods whereby the plaintiffs were permanently deprived of their goods to the reasonable value and their damage of Five hundred fifty-four and 50/100 ($554.50) dollars and the costs of this action.'
The defendant answering admits that 'in or about August, 1905, a contract was made and entered into between the plaintiffs and the defendant, whereby the defendant agreed, in consideration of the payment by the plaintiffs to it of the sum of One hundred and twenty dollars ($120) per annum, in equal monthly installments, to apply its system of electrical protection against burglary to the safe cover and windows at plaintiffs' premises, Number 895 Broadway, Brooklyn, concealing therein its recording instruments and connecting the same with its central office; to keep said apparatus constituting said protection in working order and in connection with its said central office, to send a police officer immediately to the premises of the plaintiffs should an attempt be made to enter the premises so guarded, which police officer was to enter the building and examine the same,' etc., and denies the further allegations of the complaint as above quoted. The defendant further admits that it accepted the employment under the terms of the contract mentioned in its answer, but denies that it accepted employment under the conditions named by the plaintiffs, and sets up separate defenses alleging performance of its part of the contract.
It is evident from the pleadings, and from the course of the trial--and it is urged on this appeal by the plaintiffs--that the action is one sounding in tort; that the plaintiffs have sought to recover for an alleged breach of contract on the theory that by a breach of the contract the defendant has become liable in tort for the resulting damages. The jury has found the facts, as to which they were requested to find, in favor of the plaintiffs' theory, and upon this special verdict judgment has been entered, charging the defendant for the alleged value of goods said to have been taken from the
plaintiffs' store while equipped with the defendant's burglar alarm system. The contract, which is in evidence, does not support the plaintiffs' contention that the defendant became a practical insurer of the goods in the plaintiffs' store. It merely provides for the installation of the burglar alarm system and provides what the defendant is to do in the way of affording protection in the event of an alarm call, or in the event of the system being out of order. There is no substantial difference in law between this contract and one made by a company to install a sprinkling outfit in a manufacturing plant, and to keep the same in order, and it would be rather a startling doctrine, we apprehend, to hold that such an installation called upon the installing party to become the insurer of the premises against fire by reason of a failure of the system to work properly upon a given occasion, without notice of any defect in the system.
The burglary in question is alleged to have occurred some time during the night of March 18, 1906, or before the morning of the nineteenth of March, and the plaintiffs' own witness, one of the plaintiffs, testifies that he entered the store on the morning of the eighteenth of March, the day being Sunday, to turn off a light which had being left burning the night before, and that the alarm system was working at that time, as he received and answered a signal. He likewise testifies that he visited the store on Sunday evening to turn on the same light, and that he then exchanged signals with the defendant's office, so that it appears that up to the very evening of the alleged burglary the system was in place and answering to the law of its being--it was performing its customary and proper functions. Under such conditions the presumption would arise that it continued in that condition until the contrary was shown. (22 Am. & Eng. Ency. of Law [2d ed.], 1238, and authorities cited in note.) To this presumption is to be added the fact that the defendant's expert electrician visited the premises on the following ...