#### Savin *v.*Butler.

*Pledges*— Contract *releasing liability for loss by fire or*theft— *Pledgee liable for loss by robbery, when.*

Where a pledgee accepts personal property as security for a loan and enters into a written contract with the pledgor, one clause of the contract stating that the pledgee is “not to be held accountable for fire or burglary,” and the .property has become lost to him and to the pledgor by reason of a transaction which is neither a fire nor a burglary, the pledgee must respond to the pledgor for the value of the property.

(No. 18422

Decided December 23, 1924.)

Error to the Court of Appeals of Hamilton county.

This case comes from' Hamilton county. In the superior court Joseph S. Butler was plaintiff, and Samuel iSavin, a pawnbroker, doing business in Cincinnati, was defendant. Plaintiff claimed, a recovery growing out of a contract of pledge made with defendant. The defendant admitted having *696received the article in question, a gold diamond ring, as a pledge.

The issue was submitted to a jury, which returned a verdict for plaintiff, on which judgment was entered, and, on error to the Court of Appeals, the judgment was affirmed.

The case was ordered certified here by this court.

*Messrs. Pogue,, Hoffheimer & Pogue,*for plaintiff in error.

*Messrs. Knight & Phmres,*for defendant in error.

Conn, J.

The questions argued on the briefs and orally grew out of claimed errors in the charge with respect to the burden of proof, and also claimed errors in the admission of evidence.

In the view we take of the case the alleged errors become unimportant, because they could not have been prejudicial, and will not be considered.

The action was founded on contract. In the written agreement between the parties there is this provision: “Sam. Savin not to be held accountable in case of fire or burglary.”

The contract in question grew out of the pledging by plaintiff below of a ring to defendant, Savin, to secure a loan. The facts indisputably show that the property was not lost through fire or because of burglary. The offense through which the property was lost coneededüy was a robbery, for neither at the common law nor by statute could a burglary grow out of a transaction occurring at 10 o’clock in the morning.

It is unnecessary, therefore, to determine whether Savin is bound by the rules applying to pawn*697brokers, whether he is bound by the rules relating to warehousemen, or whether he is bound by the rules governing an unclassifiable bailee for hire. Whatever may have been his status, he made a contract under which he was obligated to return the goods or be responsible for the value thereof, save only in case of fire or of burglary. Thus *pro tanto*he became an insurer.

As there is no dispute regarding the ultimate facts, the question becomes one of law. Since Savin accepted the property with an obligation on his part (other than as specified in the two exceptions) to return it, and has not exculpated himself, he is bound as a matter of law to respond in damages.

The superior court reached the right destination, although by a circuitous route. The Court of Appeals on the record affirmed the judgment, which action is hereby approved.

*Judgment affirmed.*

Marshall, C. J., Matthias and Allen, JJ., concur.