Chaloupka v. Cyr

• Decision Date: 19 December 1963
• Docket Number: No. 36627,36627
• Citation: 387 P.2d 740,63 Wn.2d 463
• Parties: Chester CHALOUPKA, Respondent, v. Paul CYR, d/b/a Frenchies Body and Fender Shop, Appellant.
• Court: Washington Supreme Court

Page 463

63 Wn.2d 463

387 P.2d 740

Chester CHALOUPKA, Respondent, v. Paul CYR, d/b/a Frenchies Body and Fender Shop, Appellant.

No. 36627.

Supreme Court of Washington, Department 2.

Dec. 19, 1963.

As Modified Jan. 15, 1964.

Keesling & Lambert, Seattle, for appellant.

Charles W. Johnson and Brooks K. Johnson, Tacoma, for respondent.

DONWORTH, Justice.

This is an appeal by defendant bailee from a judgment entered upon plaintiff's claim. The complaint alleged that plaintiff delivered his Oldsmobile automobile to defendant, a body repairman, for the purpose of having several minor repairs made thereto, and that, while it was in defendant's possession, the car caught fire because of defendant's negligence, thus causing a total loss. The answer denied any negligence, and affirmatively alleged that the fire was caused by 'a short in the electrical system.' The trial to the court sitting without a jury resulted in a judgment for a total of $1,037.60, including stipulated damages ($1,000) and costs ($37.60).

There is no substantial issue of fact in this case. Respondent (bailor) delivered his automobile to appellant (bailee) to have certain minor repairs made. While in the bailee's possession, prior to his doing any work on the car, the vehicle was destroyed by firm from an unknown cause.

The findings of fact of the trial court reflect the essential facts of the case. Of the ten findings of fact, only No. 9 (which is really a conclusion of law) is challenged by appellant. The following are the trial court's findings of fact, which are important to this appeal:

'II. That on and prior to July 11, 1961 the Defendant operated an automobile repair shop in Pierce County, Washington under the name of Frenchie's Body and Fender Shop.

'III. That on and prior to July 11, 1961, the Plaintiff was the owner of a 1958 Oldsmobile 88 2-door sedan automobile.

'IV. That shortly prior to July 11, 1961, the Plaintiff and the Defendant entered into an oral agreement, whereby the Defendant engaged to perform certain repairs to the Plaintiff's said automobile, and also engaged to take the car to a specified radio repairman for the purpose of having the radio in said car repaired; and that the parties agreed that the Defendant would be compensated for these services.

'V. That the Plaintiff delivered said automobile into the possession of the Defendant at his place of business sometime during the afternoon of July 11, 1961, for the purpose of having repairs made as above stated; that thereafter, on that day or the day following, the Defendant accepted full time employment at an auto wrecking establishment near Tacoma, which is located 10 or 12 miles distant from his own place of business, and which is located across the street from the place of business of the radio repairman who was to repair the radio of the Plaintiff's car.

'VI. That on July 14, 1961 the Defendant drove the Plaintiff's said automobile from his own place of business to his place of employment, arriving shortly before 9:00 o'clock in the morning; that the Defendant parked said automobile on an outside parking lot on the premises where he was employed; that the Defendant worked during that entire day in an open area a short distance away, at a place in full view of said automobile; that shortly before 4:30 in the afternoon of said day, the Defendant discovered the Plaintiff's said automobile to be on fire; and that said fire was ultimately extinguished by the fire department.

'VII. That the Plaintiff's said automobile was in good operating condition at the time it was left with the Defendant; that as a result of said fire, the automobile was almost totally destroyed, and was thereafter sold for salvage; and that by stipulation the parties have agreed that the amount of the damage to said automobile resulting from the fire is $1,000.00.

'VIII. That after the fire was extinguished, the upholstery in the front seat was found to be completely burned, and that in the back seat was substantially burned; that there was considerable fire damage to and under the dash on the inside; that the outside paint was severely damaged from the lower glass line up, and from the cowl to the rear of the car, but was not damaged forward of the cowl or on the hood; that all of the glass was broken or damaged beyond repair; and that there was no damage to the motor or the front end.

'IX. That the fire started somewhere in the passenger compartment; that neither party has established the cause of the fire; and that the Defendant has failed to establish that the fire did not result from his negligence.'

The trial court also entered the following conclusion of law:

'III. That the liability of the Defendant results from the presumption of negligence arising from his failure to deliver the automobile back to the Plaintiff in good condition, and his failure to show by evidence that the damage to said automobile did not result from his negligence.'

The legal issue to be decided on this appeal arises from finding of fact No. 9 (which is really a conclusion of law) and from conclusion of law No. 3. This issue can be briefly stated: who has the burden of proving negligence of the bailee when only the delivery of possession to the bailee and subsequent damage to the property are shown.

Ordinarily the rule is that a bailee is only liable for loss or damage to a bailed chattel where he has failed to exercise ordinary care under the circumstances; the bailee is not an insurer. Jones v. Warner, 57 Wash.2d 647, 359 P.2d 160 (1961); Ramsden v. Grimshaw, 23 Wash.2d 864, 162 P.2d 901 (1945); Burley v. Hurley-Mason Co., 111 Wash. 415, 191 P. 630 (1920); St. Paul Fire & Marine Ins. Co. v. Lilly Co., 48 Wash.2d 528, 295 P.2d 299 (1956).

In the Jones case, the rule is stated as follows:

'A bailee is not an insurer of property placed in his charge, but is only required to exercise ordinary care. Carley v. Allen, 31 Wash.2d 730, 198 P.2d 827. But where property not perishable in nature is delivered to a bailee in good condition, and is not returned or is returned damaged, presumption arises of negligence on the part of the bailee and casts upon him the burden of showing the exercise of ordinary care. Burley v. Hurley-Mason Co., 111 Wash. 415, 191 P. 630. However, the presumption does not arise unless it appears that the subject of the bailment is of such a nature that loss or injury could not ordinarily have occurred without negligence on the part of the bailee. Patterson v. Wenatchee Canning Co., 53 Wash. 155, 101 P. 721.'

The rule followed in numerous decisions in this state on the question of burden of proof in bailment cases where property is lost or damaged while in the bailee's possession, is that a prima facie case, or presumption, is raised when the bailor shows non-return, loss, damage or destruction to bailed property. Althoff v. System Garages, Inc., 59 Wash.2d 860, 371 P.2d 48 (1962); Jones v. Warner, supra; Ramsden v. Grimshaw, supra; Goodwin v. Georgian Hotel Co., 197 Wash. 173, 84 P.2d 681, 119 A.L.R. 788 (1938); Burley v. Hurley-Mason Co., supra; Russell v. Union Machinery & Supply Co., 88 Wash. 532, 153 P. 341 (1915); Parker v. Washington Tug & Barge Co., 85 Wash. 575, 148 P. 896 (1915); Kingsley v. Standard Lumber Co., 84 Wash. 189, 146 P. 369 (1915); Colburn v. Washington State Art Ass'n, 80 Wash. 662, 141 P. 1153 (1914); Patterson v. Wenatchee Canning Co., 53 Wash. 155, 101 P. 721 (1909); Pregent v. Mills, 51 Wash. 187, 98 P. 328 (1908).

However, if the bailee can show that he has exercised due care or can show the loss was caused by burglary, larceny, fire, or other causes which of themselves do not point to negligence on the part of the bailee, he can rebut the presumption. Jones v. Warner, supra; Dohrmann Hotel Supply Co. v. Owl Transfer & Storage Co., 19 Wash.2d 522, 143 P.2d 441, 149 A.L.R. 1108 (1943); Goodwin v. Georgian Hotel Co., supra; Birk v. Bremerton, 137 Wash. 119, 241 P. 678 (1925); McDonald v. Perkins & Co., 133 Wash. 622, 234 P. 456, 40 A.L.R. 859 (1925); Harland v. Pe Ell State Bank, 122 Wash. 289, 210 P. 681 (1922); Firestone Tire & Rubber Co. v. Pacific Transfer Co., 120 Wash. 665, 208 P. 55, 26 A.L.R. 217 (1922); Colburn v. Washington State Art Ass'n, supra; Patterson v. Wenatchee Canning Co., supra. By rebutting the presumption, the burden is on the bailor to show that negligence of the bailee resulted in the loss or damage to the bailed property.

One bailment case states that presumption is sufficient only to get the plaintiff past a nonsuit. Murphy v. Schwark, 117 Wash. 461, 201 P. 757 (1921). This is the usual result reached when dealing with presumptions.

The weight of authority (8 Am.Jur. (2d), Bailments § 315) appears to be that where the bailor shows that the failure of the bailee to return the subject of the bailment in its original condition was because it was damaged or destroyed by fire while in the bailee's possession, the burden of proving negligence remains on the bailor.

In Birk v. Bremerton, 137 Wash. 119, 241 P. 678 (1925) the plaintiff's goods were stored in the city's warehouse when they were destroyed by fire of unknown origin. In holding that the city was not liable, this court said, 137 at page 121, 241 P. at page 679:

'The law with reference to the liability of warehousemen is well settled. A warehouseman is bound to exercise ordinary diligence only. Colburn v. Washington State Art Ass'n, 80 Wash. 662, 141 P. 1153, L.R.A.1915A, 594. When, however, it is shown that the loss is occasioned by larceny, burglary, fire, or other cause which of themselves do not point to negligence on the part of the bailee, the bailee has then met the prima facie case made against him by his failure to return the goods, and the burden of proof as to negligence then rests upon the plaintiff as in any other case of alleged negligence. Colburn v. Washington State Art Ass'n, supra; Firestone Tire & Rubber Co. v. Pacific Transfer Co., 120 Wash. 665,...