Downey v. Martin Aircraft Service
| Decision Date | 17 February 1950 |
| Court | California Court of Appeals Court of Appeals |
| Parties | DOWNEY v. MARTIN AIRCRAFT SERVICE, Inc. SHACKFORD v. MARTIN AIRCRAFT SERVICE, Inc. Civ. 17202, 17201. |
Edison J. Demler, Stephen A. Pace, Jr., Long Beach, for appellants.
Forrest A. Betts, Walter Ely, Betts, Ely & Loomis, Los Angeles, for respondent.
Each of the plaintiffs and appellants herein was the owner of an airplane which was stored in the hangar of the defendant and respondent. On January 14, 1948, the hangar caught fire and the planes of plaintiffs were severely damaged. The plaintiffs each brought an action, alleging that defendant failed to deliver possession of the planes to plaintiffs upon demand, to their damage. At the trial, after the plaintiffs' testimony had established the foregoing facts, both parties rested and moved for a directed verdict. The trial court granted defendant's motion, and from the judgment entered on the directed verdict plaintiffs appeal.
The pertinent allegations of plaintiffs' respective complaints were that 'plaintiff, at the special instance and request of the defendants, and each of them, placed the above mentioned airplane in the possession of the defendants, and each of them, as bailees for the purpose' (as to plaintiff Downey, of making and performing certain repairs, and as to plaintiff Shackford, of storage); '* * * that said defendants did accept said airplane * * * and promise and agree to surrender, deliver up and return said airplane to plaintiff upon his demand; that as a consideration therefore said plaintiff did agree, promise and covenant to pay to said defendants (the costs of making and performing the repairs) (a sum of money for the storage). * * *.'
It was further alleged that each plaintiff, on or about January 15 or 16, 1948, offered to pay for the storage, or repairs, as the case might be, and demanded the return of his airplane, but that the defendants failed and refused to return the same, to his damage.
The answer in each case was a denial of the allegations above set forth. No affirmative defense was alleged.
Upon the trial plaintiff Dr. Shackford testified that his Stinson plane was kept at the hangar of defendant, Martin Aircraft Service, Inc., and that he paid a hangar rental of $25 per month; that he had flown the plane on the day of the fire to test the tail wheel assembly, which defendant had been repairing; that on the afternoon of the 14th of January, 1948, after landing the plane and filling the gasoline tanks, Dr. Shackford and one of defendant's employees pushed the plane into the hangar. On the morning of the 15th of January, after the fire, he came to the airport and identified the burned metal remains of the plane.
It was alleged in the complaint that plaintiff Shackford had demanded the return of the plane. On cross-examination he testified:
'Q. You allege in your complaint, Dr. Schackford, in substance, that you made a demand--and this is purely legal language, I suppose--that you made a demand on Mr. Martin to deliver your plane to you and that he refused to deliver your plane to you; and now from the standpoint of strict accuracy and truth you didn't ever ask him to deliver your plane to you, did you? A. I suppose that is a technical way of phrasing it. Frankly, I went out and saw that there wasn't any plane to be delivered to anybody.
'* * * You didn't demand, after you saw your plane there burned to a cinder, for him to deliver it to you in the condition you left it? A. That is right. * * *
'And he didn't refuse to deliver it to you, did he? A. No, I should say that I didn't know that question would come up.
'Q. I mean, it was obvious to you the next day when you went out there that redelivery to you of your ship was a practical impossibility. A. That is correct. * * * 'Q. You didn't know what caused it (the fire)? A. No.
Mr. Downey, owner of the other plane, testified that his plane was stored on defendant's field, but not in the hangar, and in addition to storage, he paid for maintenance and repairs; that at the time of the fire the plane was in the hangar and in possession of defendant for the purpose of recovering the control surfaces. He was in the vicinity at the time of the fire and saw his plane consumed. He testified:
* * *
'
After this testimony on the part of the plaintiffs, both sides rested and each made a motion for a directed verdict. The trial court pointed out that the plaintiffs' evidence disclosed destruction of the subjects of the bailments by a fire of unexplained origin and stated that the question was 'whether destruction by fire unexplained would shift the burden of proof over to them (defendant) to prove that they were not negligent.' The court then concluded that the action sounded in conversion and not in contract, and that there could be no recovery for conversion because there was no proof of an act of dominion wrongfully exerted. A verdict was thereupon directed for the defendant.
Whether the instant action sounded in conversion or for breach of contract of bailment is not controlling. The allegations of the complaints support either theory. It cannot be disputed that under the evidence a bailment existed. Upon motion by a defendant for a directed verdict, the power of the court is the same as upon a motion for a nonsuit. Such a motion must be denied if there be any substantial evidence which would support a verdict for the plaintiff had such verdict been given. The true question here presented is: When suit is brought against a bailee for hire for his failure to return the subject of the bailment, and it appears that the subject of the bailment has been destroyed (or lost, or stolen) while in the possession of the bailee, is the burden upon the bailee to show that the loss was not due to his failure to exercise ordinary care, or is the burden upon the plaintiff to establish such lack of ordinary care? If the burden is upon the plaintiff, he will be faced in many cases with insuperable difficulties in securing and presenting evidence. To place the burden on the defendant is in effect to hold that loss or destruction of the property, unexplained, warrants an inference that ordinary care was not exercised.
Prior to the adoption of the Warehouse Receipts Act, Stats.1909, p. 437, Deering's Gen.Laws, Act 9059, the decisions in this state as to the burden of proof when goods stored with a defendant have been lost or destroyed were conflicting and confusing. See discussions in George v. Bekins Van & Storage Co., 33 Cal.2d 834, 839, 840, 205 P.2d 1037, and Wilson v. Crown Transfer Co., 201 Cal. 701, 706, 707, 258 P. 596. Section 8 of the aforesaid act provides that if a warehouseman fails to deliver the goods in compliance with a proper demand, the burden shall be upon him to establish the existence of a lawful excuse for such refusal. The Supreme Court, in the case first above cited, rejected the contention of defendant that a showing that the goods were destroyed by fire established a lawful excuse and placed the burden of proving negligence upon the plaintiff. Quoting from the opinion, 33 Cal.2d at page 840, 205 P.2d at page 1042: ...
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