Gulf & Ship Island R. R. Co. v. Sutter Motor Co

• Decision Date: 13 January 1930
• Docket Number: 11,645
• Citation: 12 La. App. 495,126 So. 458
• Parties: GULF & SHIP ISLAND R. R. CO. v. SUTTER MOTOR CO
• Court: Court of Appeal of Louisiana — District of US

126 So. 458

12 La. App. 495

GULF & SHIP ISLAND R. R. CO. v. SUTTER MOTOR CO

No. 11,645

Court of Appeals of Louisiana, Orleans

January 13, 1930

Appeal from Civil District Court, Parish of Orleans, Division "C". Hon. E. K. Skinner, Judge.

Action by Gulf & Ship Island Railroad Company against Sutter Motor Company.

There was judgment for plaintiff, and defendant appealed.

Judgment affirmed in part and reversed in part and remanded.

Lemle Moreno & Lemle, of New Orleans, attorneys for plaintiff appellee.

R. O Vorbusch, of New Orleans, attorney for defendant, appellant.

OPINION

JANVIER, J.

Defendant, Samuel E. Sutter, using the trade-name Sutter Motor Company, operates a public garage.

Plaintiff owned a Nash automobile which it assigned to one of its employees for use in his work, and which was stored over night in defendant's garage.

During the night and without the knowledge of defendant it was taken out of the garage by one of defendant's employees, who was in charge of the garage for the night, and, while it was being operated by that employee, Schayer, for his own purposes, it was seriously damaged as a result of his negligence.

Plaintiff attempts through this suit to recover the cost of making the repairs which he claims were necessitated by the accident.

Defendant resists payment on the theory that the employee, in taking out the car for his own purposes, was not acting within the scope of his employment and that therefore he (Sutter) is not liable for the damages resulting to plaintiff's car from the unauthorized act of the employee. In support of this contention several authorities are cited, notably Tinker vs. Hirst, 162 La. 209, 110 So. 324.

But that case and the others referred to are authority solely for the proposition that a master is not liable to third persons for the results of the negligent act of his employee, unless the act was done by the employee while acting within the scope of his employment. That doctrine, while manifestly sound, is plainly not applicable here, because we are not concerned with the question of the liability ex delicto of the master for the acts of his servant which result in injuries to third persons, but solely with the determination of what is the contractual liability of a bailee for hire.

The evidence shows that, when the car was left in defendant's garage, it was in good condition and that the next day it was found in the garage in a much damaged condition. This fact alone placed upon the garageman, as bailee for hire, the burden of proving that the cause of the damage was neither his negligence nor the negligence of his employee. Scott vs. Sample, 148 La. 627, 87 So. 478; Turnbull vs. Automobile Service Co., Orleans App. 8156, unreported (See Louisiana and Southern Digest), decided January 30, 1922.

In Hartford Fire Insurance Co. vs. Doll, 5 La. App. 226, the Court of Appeal for the Second Circuit said:

"A bailee for hire is not an insurer of the chattel left in his hands. But he is required to use due and ordinary care in the protection of the article and is bound to restore it when the bailment is at an end.

"It is contended by defendant that he assumed no special obligation to protect and restore this car, but we think he did. The printed receipt or coupon evidences that fact. But even if he did not, he is still liable under the general law of bailment in which there is an implied obligation on the part of the bailee to keep and return the property; and unless it is shown that the property was lost without negligence on his part, he is liable for its value."

With reference to the stipulation in the claim check that the garage would not be responsible for fire or theft, it appears to us that defendant is in no way...