Adolphus Garage v. Nelson, 105

• Decision Date: 11 February 1965
• Docket Number: No. 105,105
• Citation: 387 S.W.2d 472
• Parties: ADOLPHUS GARAGE, Appellant, v. Paul A. NELSON, Appellee.
• Court: Texas Court of Appeals

Page 472

387 S.W.2d 472

ADOLPHUS GARAGE, Appellant, v. Paul A. NELSON, Appellee.

No. 105.

Court of Civil Appeals of Texas, Tyler.

Feb. 11, 1965.

Rehearing Denied March 4, 1965.

John A. Gilliam and Pinkney Grissom, Thompson, Knight, Wright & Simmons, Dallas, for appellant.

L. W. Westerlage, Dallas, for appellee.

MOORE, Justice.

Plaintiff, Paul A. Nelson, brought this suit against Adolphus Garage alleging that on January 30, 1963, he was the owner of a 1962 Thunderbird automobile which was delivered to the defendant's garage for storage; that at the time he delivered the automobile to defendant same was in good condition and free of any damage; that defendant thereby became a bailee of the automobile and was therefore bound to re-deliver same to the plaintiff in the same condition as when left with defendant. That when plaintiff sought re-delivery of his automobile he discovered that if had been severly damaged. It was stipulated that the damages amounted to $922.79.

Defendant denied generally the allegations of plaintiff's petition and further alleged that the damages to the plaintiff's automobile was not caused by its negligence, but was caused by a collision between plaintiff's automobile and a 1960 Cadillac driven by one of defendant's parking station attendants when the brakes thereon failed; that the failure of the owner of the Cadillac to notify defendant of the defective brakes was a sole proximate cause of the damages. Defendant also pled unavoidable accident.

After a trial before the court without the intervention of a jury, judgment was rendered for the plaintiff in the sum and amount of $922.79, from which defendant perfected this appeal.

In response to defendant's request, the court filed the following findings of fact and conclusions of law: (1) that on January 30, 1963, plaintiff was the owner of the Thunderbird automobile (2) which was left with the defendant who was in the business of operating a parking garage for consideration (3) which was paid; (4) that at the time of delivery the automobile was undamaged; (5) that defendant had exclusive control of the automobile at all times including the time it was damaged; (6) that it was parked on defendant's premises and that (7) thereafter the defendant had exclusive control of the 1960 Cadillac; (8) that defendant's employee, R. D. Crouch, drove the Cadillac from the first floor on defendant's premises, up a ramp and approximately 100 feet to the end of a ramp where he collided with plaintiff's automobile which was parked on the second floor (9) while in the scope of his employment (10) causing plaintiff's automobile to be thrown in contact with another automobile (11) causing damages of $922.70; (12) that Crouch failed to keep the Cadillac under such control as would have been kept by a person of ordinary prudence in the exercise of ordinary care (13) which was a proximate cause and (14) that he drove the Cadillac at a rate of speed greater than a person of ordinary care would have driven same (15) which was a proximate cause; (16) that the failure to apply the emergency brake (17) was not negligence nor (18) the proximate cause; (19) that the foot brakes on the Cadillac failed (20) which was a proximate cause of the collision; (21) that the collision was not the result of an unavoidable accident; (22) that the owner of the Cadillac did not commit any negligent act or omission. In Conclusions of Law the court found (1) that the agreement between the parties amounted to a bailment for hire, and (2) that the facts and law being with the plaintiff, he was entitled to recover his damages.

Defendant contends that plaintiff was not entitled to judgment because plaintiff's case was based only on presumed negligence under the doctrine of res ipsa loquitur, and that when defendant offered proof showing that the defective brakes on the Cadillac were a cause of collision and damages that such proof, as a matter of law, amounted to a satisfactory explanation showing no negligence on defendant's part and hence plaintiff's case based on the theory of res ipsa loquitur was destroyed, and not having alleged any negligence in his pleadings, he cannot recover on negligence. Defendant further contends that there was no evidence to support the judgment, and alternatively that the judgment was against the overwhelming weight and preponderance of the evidence.

The findings of fact and conclusions of law do not indicate whether the judgment is based upon the theory of presumed negligence under the doctrine of res ipsa loquitur or whether the judgment is based upon an affirmative finding of negligence against the defendant. It will therefore be necessary for us to determine whether the judgment may be supported on either theory.

Plaintiff's original petition, on which he went to trial, alleged facts showing only that at the time he left his automobile with defendant it was in good condition, but that when he returned, he found it to be severely damaged. Negligence was not alleged, either generally or specially.

The doctrine of res ipsa loquitur has been applied by the Texas courts in bailment cases. Hislop v. Ordner, 28 Tex.Civ.App. 540, 67 S.W. 337; Barclay v. Burge, 245 S.W.2d 1021 (Tex.Civ.App.). When the bailee alleges a case of presumed negligence, it has been held that:

'* * * the burden of proof on the whole case, including the issue of negligence, is on the * * * bailor, but as stated in Wigmore on Evidence, 3rd Ed., Sec. 2508, 'Where goods have been committed to a bailee, and have either been lost or been returned in a damaged condition, and the bailee's liability depends upon his negligence, the fact of negligence may be presumed, placing on the bailee at least the duty of producing evidence of some other cause of loss or injury.' Without prejudice to the burden of proof being at all times on the bailor, the bailor under this latter rule makes a prima facie or presumptive case of negligence by proving the bailment and either the return of the goods by the bailee in a damaged condition, nor existing at the time of their delivery to him, or a failure by him to return them at all. The rule is said to be...