Wijtenburg Holdings, Trading as Flaming Dry Cleaners v Bobroff

• Jurisdiction: South Africa
• Judge: Viljoen J and Philips AJ
• Judgment Date: 10 July 1970
• Court: Transvaal Provincial Division
• Hearing Date: 13 May 1970
• Citation: 1970 (4) SA 197 (T)

A Viljoen, J.:

The appellant was the defendant in the court below, and the respondent the plaintiff. I shall herein, for the sake of convenience, refer to the parties as the plaintiff and the defendant. The plaintiff sued the defendant for the payment of damages resulting from damage occasioned to plaintiff's antelope coat which the defendant had undertaken to clean, and which was allegedly unfit for wear after B the cleaning. After lengthy evidence had been led, the magistrate granted judgment in the plaintiff's favour in the amount of R116, plus costs. The defendant now appeals against this judgment.

It is alleged in the plaintiff's particulars of claim that it was an express term of the agreement that defendant would exercise the greatest C care in cleaning the antelope coat. This is admitted, but it is denied that the defendant failed to exercise the greatest care, and it is also denied that the coat was damaged, or, if damaged, that it was damaged in the course of the cleaning process. The plaintiff was further put to the proof in respect of the damages.

D Alternatively, the defendant pleaded that, should the court find that the coat was damaged in the course of the cleaning process, it is in any event not liable because it was an express term of the written agreement that the defendant would not be responsible for damage to the coat arising from any cause whatsoever and that the coat was accepted for E cleaning solely at the plaintiff's risk. In this respect reliance is placed by the defendant on two documents. The one is a docket which was handed to the plaintiff when she left the coat with the defendant. It contains her name and address, a description of the coat, the price for which the defendant undertook to clean the coat and certain instructions for the cleaning staff, viz.,

'Customer has taken hem out. F Please clean nicely.

Clean only.'

At the bottom of the docket the following condition appears in print.

'Goods for cleaning at owner's risk

Whilst exercising the greatest care, we are not responsible for any articles not standing the process of cleaning, neither are we G responsible for shrinkage or stretching, nor for any marks remaining after cleaning. We do not guarantee against the loss of buttons and we are not responsible for any items left in the pockets of or attached to the article. We are furthermore not responsible for burglary, theft or the loss in any manner whatsoever of the articles left with us, nor are we responsible for damage to the article by fire or for damage to the article from any cause whatsoever. Not responsible for garments left after three months.'

H The other document relied upon is a document headed 'Advice about leather garments' and reads:

'Composition:

Most leather garments are made up of different hides. This is usually not noticed when purchasing a leather garment. Because these hides come from different animals and are not of the same thickness, the sections of the garment will not lend themselves to an even original finish. As a result flaws will show up only after cleaning.

Dyeing:

Because most of the suede leather coats and garments, when handed in for cleaning, are heavily soiled and sometimes badly faded and since most of the

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colours are not fast, we recommend our customers strongly to have their garments redyed. Redyeing can only be done in the same colour. The garment will in most cases become a shade darker after dyeing. We must point out to our customers that cuffs, pockets and thick seams in the front and back always get worn out first and will consequently show up after cleaning. Even after dyeing a difference will be noticed. Grain A leather garments must however always be redyed as all grain leathers loose their finish.

General:

Because buttons on coats and jackets are constantly used, there is a risk that the leather with which they are covered will crack during the cleaning process.

Most of the garments which we receive for cleaning, have glued seams. Some of the glues dissolve in cleaning, but in most cases we are able to re-glue the seams.

Owners' risk:

B Whilst cleaning leather garments every expert care is taken to ensure a high quality finish. However we only accept to clean leather garments at owners' risk.'

These documents are common cause. In fact, they were attached as annexures 'A' and 'B' to the plaintiff's further particulars in support of an allegation that the agreement was in writing.

C The plaintiff stated in evidence that this was a coat which she had received as a present in June, 1968, and which she had not worn more than approximately half-a-dozen times. At the stage she decided to have it cleaned there was not much wrong with the coat, but it was not as D immaculate as she would have liked it to be. She was somewhat hesitant about having the coat dry-cleaned for fear that the coat might come out worse but her fears were allayed by the lady assistant who attended to her, and who assured her that expert care would be taken in cleaning her coat. She was given certain advice by this lady, inter alia, that it was not necessary to have the coat dyed because it was still a new and E nice-looking coat. The lady's view was that the only thing that might happen was that the coat might come out of the process a shade lighter. She accepted this advice, in pursuance of which it was arranged that the coat would merely be cleaned, which accounts for the words 'clean only' on the invoice.

F The lady gave her the document headed 'Advice about leather garments' (a copy of which is annexure 'B') to read, and told her that she had been instructed to hand a copy of this document to every customer who brought in a leather garment for cleaning. The words 'clean nicely' were inserted by the lady assistant who remarked that it was such a good coat and she wanted special attention to be given to the coat. It was G arranged that the plaintiff would come in after ten days to collect the coat. When she went there after ten days she was told it was not ready yet. After another week she went again and produced the docket and the coat was produced. The plaintiff could not believe it was her coat and said so to the lady assistant but after some investigation it proved to H be the coat which she had left there to be cleaned. The plaintiff was shocked and angry and, after certain words had been exchanged, she left the defendant's premises without the coat and consulted her attorney. About a month later, on the advice of her attorney, she went back, paid the defendant the amount of R6 and collected the coat which was exh. 1 before the court a quo and was also produced in this Court. When she produced the coat in the court a quo she testified that, before she took it in, it was smooth and had a velvety finish and the colour was a dark bottle green. Now, she said, it is rough and

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patchy of colour. Before she handed it over for cleaning it was a beautiful suede coat. Now it looks like an old rag and she would not wear anything like it. She showed the court how smooth the coat still is A at the back of the lining, but now there is a big difference between those protected parts and the exposed parts. The colour which was an olive green before the cleaning had changed to a patchy faded green, and there was no pile on the exposed parts. She never expected that they would submerge her coat in a chemical solution because they advertised that they hand-cleaned everything. She assumed that they would B hand-clean her coat because she had been told never to subject the coat to any form of liquid or to go in the rain with it.

For the plaintiff a witness by the name of Gurman was called. He is the managing director of the House of Koseff, which deals extensively in furs, suede and leather. His company is the largest in the southern C hemisphere in this trade and has been so for 35 years. Before that he was in Israel in a related type of business. For the last 16 years he has been buying the actual raw material dressed and has been concerned with the manufacturing of all types of leather garments and with retailing these garments. He selected the raw material which he buys, he chooses the styles, gives it to his workroom to manufacture, sees the D ready product, inspects it for defects, and sells the finished product. He therefore has experience of all stages of the creation of the product up to the point when it is eventually sold. He also has experience of cleaning leather garments. In his opinion leather cannot be cleaned and washed like any other garment because it is not a fabric or a cloth E which is woven or knitted. He described the difference between suede, leather and fur. In cleaning you dare not wet the suede because the garment will shrink, he explained. If you do wet it you have to stretch it again on a board. He opened the seam of the coat and showed the court the original colour where the chemicals which were used in the cleaning process did not penetrate. Questioned about the cleaning of a suede coat F he stated that it is very difficult to say what chemicals are used to clean suede because cleaners might use different chemicals but get the same results. As far as he was concerned, however, if the garment was not very dirty, he would use a soft brush. If it was a little more dirty he would use sandpaper. But if you have to use chemicals, he said, you G have to be very careful. Questioned about the type of chemicals he had in mind his reply was that he is not a professional cleaner and he would not like to elaborate on that. The best result he had obtained was with plain paraffin oil. He had seen suede coats before and after they had been cleaned with chemicals and the general effect was that 99 per cent good results had been obtained. He added, however, that green is a H difficult colour, thereby suggesting, I take it, that with green...