Farrell-Calhoun Co. v. Union Chevrolet Co.

• Decision Date: 28 May 1937
• Citation: 113 S.W.2d 419
• Parties: FARRELL-CALHOUN CO., Inc., for Use of AUTOMOBILE INS. CO. OF HARTFORD, CONN., v. UNION CHEVROLET CO.
• Court: Tennessee Supreme Court

Page 419

113 S.W.2d 419

FARRELL-CALHOUN CO., Inc., for Use of AUTOMOBILE INS. CO. OF HARTFORD, CONN., v. UNION CHEVROLET CO.

Court of Appeals of Tennessee, Western Section.

May 28, 1937.

Certiorari Denied February 12, 1938.

Appeal in error from Circuit Court, Shelby County; Ben L. Capell, Judge.

Action by the Farrell-Calhoun Company, Inc., for the use of the Automobile Insurance Company of Hartford, Conn., against the Union Chevrolet Company to recover damages sustained by plaintiff as result of defendant's alleged negligence in permitting plaintiff's automobile to be stolen from defendant's repair shop. Judgment of dismissal, and plaintiff appeals in error.

Reversed and rendered.

Albert Johns and W. Curtis Pope, both of Memphis, for plaintiff in error.

Lowell W. Taylor, of Memphis, and H. M. Gregory, of Athens, for defendant in error.

KETCHUM, Judge.

In this case the plaintiff, Farrell-Calhoun Company, Incorporated, brought the suit for the use and benefit of the Automobile Insurance Company of Hartford, Conn., against the defendant, Union Chevrolet Company, for damages in the sum of $375.24, sustained by the plaintiff by reason of the alleged negligence of the defendant in permitting the plaintiff's automobile to be stolen out of the defendant's repair shop after it had been left there for certain repairs and services. To the plaintiff's declaration, the defendant filed a plea of "not guilty." On a trial of the case before the court sitting without a jury, the plaintiff's suit was dismissed and its motion for a new trial having been overruled, it has appealed in error to this court.

The defendant had for ten years prior to June 8, 1932, been engaged in business in Memphis as a Chevrolet automobile dealer, and shortly before that date had sold to the plaintiff a new Chevrolet sedan for the sum of $720.50. The defendant's place of business was located at the corner of Union avenue and Camilla street, in the city of Memphis. In the rear part of its building, which extended northwardly to Monroe avenue, it maintained a service and repair department in which from 15 to 20 mechanics and repairmen were regularly employed, and in which from 50 to 75 cars were serviced or repaired per day. There was a shop foreman in charge of this repair department. It was his duty to see that the work on the cars was properly done, and that the cars were delivered, when the work was done, to the owners. There were three wide doors in the side of this repair shop, opening on Camilla street. The lunch hour was between 12 and 1 o'clock, and the mechanics and repairmen generally went out to lunch at that time, but there were generally as many as 4 or 5 men working on cars in the repair shop during the noon hour.

On the morning of June 8, 1932, at about 10:30 o'clock Mr. Oral McGee, a salesman of the plaintiff, took the plaintiff's car to the defendant's place of business to have the 500-mile inspection, and to have the car greased and the oil changed; he talked to Mr. Richmond, the defendant's vice president, who made out a bill showing the work to be done on the car, and gave a duplicate to McGee; Richmond then directed one of the men in the service department to take McGee up town to the plaintiff's place of business, which he did. The service man, Carroll, then took the car to the defendant's repair shop where it was serviced, and then parked inside of the repair shop along with the cars of other customers, with the ignition key in the lock. The car was delivered at the repair shop at about 11 o'clock. At about 1 o'clock, McGee telephoned to Richmond and asked to have the car sent to him at the plaintiff's place of business, and was told that it would be there in about ten minutes; a few minutes later Richmond called McGee and told him that the car could not be found, and that further search would be made for it; and later he telephoned him that after a thorough search and investigation it still could not be found, and that it had been stolen. The police were notified of the theft, and through their efforts the car was finally located about four months later at Okmulgee, Okl., but in a damaged condition.

The plaintiff had obtained a policy of insurance on said car from the Automobile Insurance Company of Hartford, Conn., insuring it against loss or damage to said car by burglary or theft; and it collected from the insurance company for the damage to the car, amounting to $375.24, and assigned to it all of its right of action against the defendant for its failure to return or account for said car to the plaintiff, and authorized the insurance company to sue for said damages in the plaintiff's name.

The case presented is one of bailment for the mutual benefit of the parties, and the obligation of the defendant was for the exercise of ordinary care and diligence in safeguarding and caring for the plaintiff's car, that is, such care and diligence as a capable and reasonably prudent person engaged in the same business is accustomed to exercise. Young v. First Nat. Bank, 150 Tenn. 451, 461, 265 S.W. 681, 40 A.L.R. 868; Tennessee Hermitage National Bank v. Hinds, 1 Tenn.App. 508, 514.

And the weight of authority supports the proposition that, at least in actions based on negligence, the ultimate burden of proving negligence is ordinarily upon the bailor, where he is seeking to recover for the loss of property which it is conceded, or which the evidence tends to show, with reasonable certainty, has been stolen while in the possession of the bailee. See annotation on "Presumption and burden of proof of negligence," 26 A.L.R. 232.

In 6 Corpus Juris, Title "Bailments," § 158, page 1158, it is said that:

"The rule is undoubted that in all actions founded upon negligence, or a culpable breach of duty, the burden is on the plaintiff to establish negligence by proof. This principle is recognized by all the authorities as applicable between bailor and bailee, and the only conflict is on the question whether the loss of, or damage to, the goods while in the bailee's possession raises such a presumption of negligence on his part as to establish a prima facie case against him."

In 6 Am.Jur., Bailments, § 368, page 446, the rule is stated as follows:

"Where an action in respect of the thing bailed is brought by a bailor against his bailee in tort, and the complaint expressly alleges negligence on the part of the bailee, or is construed as stating a cause of action based on negligence, the weight of modern authority supports the rule that the ultimate burden of proving negligence rests upon the bailor; and if, at the close of all the evidence, the jury is in doubt whether due care was exercised, the bailor will fail. In such cases the bailor has made negligence a factor in his case, and the rule applies that the party seeking recovery must prove each essential element of his cause of action. This rule is generally supported by those decisions where the fact is assumed, conceded, or established by proof, that the property bailed was stolen, or injured or detroyed by fire. * * *"

Among the cases cited in support of this text are Noel & Co. v. Schuur, 140 Tenn. 245, 249, 204 S.W. 632; Smith v. Noe, 159 Tenn. 498, 505, 19 S.W.2d 245, in which it was held that the mere fact of the theft, or the destruction of the subject of the bailment by a fire of unknown origin, would not create a presumption of negligence on the part of the bailee; the burden of proof,...