Firestone Tire & Rubber Co. v. Pacific Transfer Co.
Decision Date | 08 July 1922 |
Docket Number | 16655. |
Citation | 208 P. 55,120 Wash. 665 |
Parties | FIRESTONE TIRE & RUBBER CO. v. PACIFIC TRANSFER CO. |
Court | Washington Supreme Court |
Appeal from Superior Court, Spokane County; Bruce Blake, Judge.
Action by the Firestone Tire & Rubber Company, a corporation against the Pacific Transfer Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with instructions.
Danson Williams & Danson, R. E. Lowe, and Newton Henton, all of Spokane, for appellant.
E. H. Belden, of Spokane, for respondent.
The important facts in this case are these: The defendant appellant here, was the owner and operator of a warehouse or storeroom, located in the city of Spokane. An arrangement was made between it and the plaintiff whereby the latter was to occupy certain space in the warehouse for the storage of automobile tires. By agreement between the parties, the defendant constructed a fence or lattice work inclosing the space to be occupied by the plaintiff. This inclosure was made of wooden planks 1X4 inches in size, and extending from the floor to near the ceiling of the room. At the plaintiff's request, the defendant installed two doors as a part of the inclosure. The plaintiff obtained and put on these doors locks, and retained the keys thereto. It also had a key to one of the outside doors leading to the general storeroom. One party knew as much as the other about the construction of the inclosure. It was not contemplated that it was burglar proof, but was constructed more for the purpose of keeping the plaintiff's tires from being mixed with other tires and goods in the warehouse, than for any other purpose. There was a space of some two or three feet between the top of the boards inclosing the space and the ceiling. While the plaintiff was using this space a good many tires were stolen therefrom by two of the employees of the defendant. A part of these tires were recovered, and the plaintiff sued the defendant for the value of the remainder. The case was tried to the court without a jury, and judgment was rendered for the plaintiff in a sum in excess of $1,000. This appeal results.
The chief argument here centers around two questions: First, was the relationship between the parties that of bailor and bailee; and, second, was there sufficient evidence concerning the negligence of the appellant to justify the judgment?
We will assume that the relationship was that contended for by the respondent, to wit, bailor and bailee, and that the law of bailment is applicable, and go at once to the question of negligence.
The testimony shows that none of the officers of the appellant or those in charge of the warehouse had anything to do with, or had any knowledge of, the theft of the tires. The testimony only shows that the tires were stolen by two of the appellant's employees. There was no testimony tending to show the appellant had been careless or negligent in hiring or keeping those employees, or that it had any reason to believe they were dishonest. There is no testimony to show that anything had been stolen previously from the warehouse, or that the outside doors were not securely locked during nights and nonbusiness days. The only testimony upon which liability of the appellant could be based is that which shows that two of its employees stole the property. We have nto overlooked the testimony of one of respondent's witnesses to the effect that one of the officers of appellant tole the respondent that the goods would be safe in the warehouse, and that nothing had ever been stolen therefrom. This was nothing more than the expression of an opinion, and cannot be held to indicate any negligence on the part of appellant.
It is the settled rule of law that in a bailment for hire the bailee is bound to exercise reasonable or ordinary care. Colburn v. Washington State Art. Ass'n, 80 Wash. 662, 141 P. 1153, L. R. A. 1915A, 594, and authorities there cited. Of course, as to what would be reasonable care would depend largely upon circumstances, for what would be reasonable care concerning the storage of coal or iron would not necessarily be reasonable care concerning the storage of valuable jewelry and works of art. But that particular phase of the question is not material to the decision of this case.
The question here is principally one of presumptions and burden of proof. If, when it appeared that the tires had been stolen by employees of the appellant, the burden then rested on it to show want of negligence, the judgment must be affirmed because it did not offer any such testimony. If, on the contrary, when the fact of the theft was disclosed, the burden rested on the respondent to show such negligence of the appellant as contributed to the theft, then the judgment must be reversed, because it failed to produce such proof.
It is the prevailing doctrine that in a suit of this character, when the plaintiff has proven a demand for the return of the goods bailed, and that the bailee has failed to return them, a prima facie case against the bailee has been made. This rule proceeds upon the theory either that the bailee, being in possession, knows better than any other person why he does not return them, or from a presumption that the actually retains the goods, and by his refusal to deliver them converts them to his ovn use. But when it is shown that the goods were stolen, the prima facie case or presumption is overcome, and the duty of proving negligence rests upon the plaintiff. While this rule with reference to the prima facie case and burden of proof is not universal, it is supported by the great weight of authority, and has been recognized by this court in the Colburn Case, supra. In that case the respondent invoked the rule that in actions of this character, where goods are not returned upon the demand of the bailor, the burden of proof rests upon the bailee. Concerning that theory we said:
We sustained these assertions by quoting from a number of cases, and among the rest, Knights v. Piella, 111 Mich. 9, 69 N.W. 92, 66 Am. St. Rep. 375, where it was said:
exculpation.'
The case of Claflin v. Meyer, 75 N.Y. 260, 31 Am. Pep. 467, is an important and leading one on this subject. The facts were that certain goods held by a bailee were stolen from the warehouse. The court said:
'But where the refusal to deliver is explained by the fact appearing that the goods have been lost, either destroyed by fire or stolen by thieves, and the bailee is therefore unable to deliver them, and there is no prima facie evidence of his want of care, and the court will not assume in the absence of proof on the point that such fire of theft was the result of his negligence.'
The prevailing rule is well stated in 3 R. C. L. page 151, as follows:
'But if the bailee proves that the property was stolen or destroyed by fire, or accounts for his failure to return or for the injury in any other way which does not on its face involve negligence or call of further explanation, the bailor must prove negligence.'
In 27 R. C. L. 1002, it is said:
All that the testimony...
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