Barnett Motor Transp. Co. v. Cummins Diesel Engines of Conn., Inc.

Decision Date10 December 1971
Citation291 A.2d 234,162 Conn. 59
CourtConnecticut Supreme Court
PartiesBARNETT MOTOR TRANSPORTATION COMPANY, Inc. v. CUMMINS DIESEL ENGINES OF CONNECTICUT, INC.

David M. Reilly, Jr., New Haven, for appellant (defendant).

Harold C. Donegan and Bruce W. Thompson, New Haven, for appellee (plaintiff).

Before HOUSE, C. J., and COTTER, THIM, SHAPIRO and LOISELLE, JJ.

LOISELLE, Associate Justice.

The plaintiff brought this action to recover the value of a fully equipped Mack diesel tractor, stolen while alleged to be in the possession of the defendant as a bailee for hire. The defendant has appealed from the judgment rendered for the plaintiff. The complaint is in two counts; the first count relies on the contract of bailment, and the second rests on the alleged negligence of the defendant. The defendant admitted the tractor had been stolen, and, by way of special defense to the first count, alleged redelivery of the tractor when it left the tractor in its yard in accordance with the plaintiff's direction. As to the second count, two special defenses were set forth, (1) assumption or risk and (2) contributory negligence.

The defendant's assignments of error pursued in its brief relate solely to the trial court's instructions to the jury. The correctness of the charge is determined by the claims of proof of the parties. Practice Book § 635; Moonan v. Clark Wellpoint Corporation, 159 Conn. 178, 180, 268 A.2d 384; Levett v. Etkind, 158 Conn. 567, 569, 265 A.2d 70. Some mention was made in the defendant's brief, while discussing a claim of error, of an assignment of error claiming the court erred in refusing to include eight paragraphs of the defendant's offers of proof in its draft finding. A part of one paragraph so mentioned is in the defendant's offers of proof in the finding and the remainder of the paragraph is not supported by any testimony in its appendix. The seven other paragraphs claimed are neither facts nor ultimate facts supported by proof of other facts, but, rather, are conclusions rightly left to the jury to decide. The remaining assignments of error have not been briefed and are considered to be abandoned. Mendez v. Mendez, 160 Conn. 237, 239, 278 A.2d 795; Labbadia v. Bailey, 152 Conn. 187, 190, 205 A.2d 377.

The jury could have found the following from the plaintiff's claims of proof: The plaintiff left a Mack tractor at the defendant's place of business for repairs to its motor. On March 29, 1960, on receiving a call from an agent of the defendant that the repairs were completed to the motor, the plaintiff's president and the defendant's agent reached an agreement whereby the tractor would be left outdoors in the defendant's yard, the cab to be locked and the tractor's key to be left in the battery box. The key would lock the door and operate the electrical system of the tractor but could not be used to start the tractor. Air pressure was used to start the tractor and this air pressure was normally available from a reservoir located on the tractor and operated by a lever. Air pressure could also be developed from an outside source or by pushing the vehicle. The plaintiff's president made arrangements for a company employee to pick up the tractor at about 6 a.m. March 30, a time when the defendant's business was not operating. The plaintiff's president did not know whether the defendant had a watchman on the premises or whether there was a fence around the premises; but he did not expect the tractor to be enclosed in a locked area. The plaintiff's employee arrived at the defendant's place of business that morning at about 8 a.m. and it was found that the tractor had been stolen. A truck had been moved in the defendant's yard from the position in which it had been left on the previous evening; a manila rope, owned by the defendant and taken from another vehicle, had been attached to its rear axle. The plaintiff's tractor could have been parked on a blacktop area which was lighted by floodlights. It was left in a dark, unpaved area of the defendant's premises approximately 150 feet from the floodlights located thereon. There was no fence around the defendant's parking lot, and it had no night watchman on duty. No warning devices or other forms of security were provided by the defendant to prevent the theft of the tractor.

The first assignment of error is that the court erred in charging the jury in respect to the presumption of negligence arising out of the failure of the defendant to return the bailed tractor. One thrust of the defendant's argument is that the plaintiff should have been required to choose whether it would proceed on the basis of the presumption of negligence arising out of the failure to return the bailed property as pleaded in the first count or whether it would proceed on the claim of negligence alleged in the second count.

Practice Book § 86(1)(7) allows a complaint to include separate claims in contract and tort arising out of the same transaction. The trier of facts then determines if the plaintiff shall recover on either count or not at all; Anderson v. Gengras Motors, Inc., 141 Conn. 688, 691, 109 A.2d 502; Watrous v. Sinoway, 135 Conn. 424, 426, 65 A.2d 473; Dejon v. Smedley Co., 108 Conn. 659, 667, 144 A. 473; Hickey v. Slattery, 103 Conn. 716, 719, 131 A. 558; Wells v. Active Automobile Exchange, Inc., 99 Conn. 523, 529, 121 A. 883; Fairfield v. Southport National Bank, 80 Conn. 92, 100 67 A. 471; unless, of course, the court finds as a matter of law that the evidence offered is insufficient to support one or both counts. Terminal Taxi Co. v. Flynn, 156 Conn. 313, 317, 240 A.2d 881; Lombardi v. J. A. Bergren Dairy Farms, Inc., 153 Conn. 19, 23, 213 A.2d 449.

One reason for confusion in this case is that the complaint is framed in two counts, one in bailment contract and the other in negligence. In the care of property, the bailee's contractual obligation is to exercise due care for the safekeeping of the bailed property, and, so, essentially, when loss or damage occurs, liability is based on negligence, even though negligence constitutes a breach of contract. Maynard v. James, 109 Conn. 365, 368, 146 A. 614. Once a bailment has been established and the bailee is unable to redeliver the subject of the bailment in an undamaged condition a presumption arises that the damage to or loss of the bailed property was the result of the bailee's negligence. National Broadcasting Co. v. Rose, 153 Conn. 219, 225, 215 A.2d 123. Consequently, in charging the jury on each count, the issue of negligence is controlling but in a different context. Although such pleading is permissible, when a bailment contract is pleaded it will rarely serve any useful purpose to plead a separate count in negligence.

The defendant claims that the court should not have charged on the presumption because it disappeared when the defendant offered evidence of negligence which proved the circumstances surrounding the...

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16 cases
  • Griffin v. Nationwide Moving and Storage Co., Inc.
    • United States
    • Connecticut Supreme Court
    • June 22, 1982
    ...[1929]." Frissell v. John W. Rogers, Inc., supra, 141 Conn. at 310, 106 A.2d 162; see Barnett Motor Transportation Co. v. Cummins Diesel Engines of Connecticut, Inc., 162 Conn. 59, 63, 291 A.2d 234 (1971); National Broadcasting Co. v. Rose, supra, 153 Conn. at 225, 215 A.2d 123. " 'This pre......
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    ...Hendrix, 542 F.2d 879 (2d Cir.), reviewing the positions of the various federal circuits; Barnett Motor Transportation Co. v. Cummins Diesel Engines of Connecticut, 162 Conn. 59, 63-64, 291 A.2d 234. In the case of an insanity defense, some states follow the "lingering inference" rule enunc......
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    ...409, 71 A.2d 593 (1950); and is capable of supporting a judgment as required. See Barnett Motor Transportation Co. v. Cummins Diesel Engines of Connecticut, Inc., 162 Conn. 59, 67, 291 A.2d 234 (1971). Cf. Labatt v. Grunewald, --- Conn. ---, ---, 438 A.2d 85 (42 Conn.L.J., No. 8, pp. 40, 41......
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    • May 7, 2010
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