Hopper's, Inc. v. Red Bank Airport, A--410

• Decision Date: 21 September 1951
• Docket Number: No. A--410,A--410
• Parties: HOPPER'S Inc. et al. v. RED BANK AIRPORT, Inc.
• Court: New Jersey Superior Court — Appellate Division

Page 349

15 N.J.Super. 349

83 A.2d 457

HOPPER'S Inc. et al. v. RED BANK AIRPORT, Inc.

No. A--410.

Superior Court of New Jersey Appellate Division.

Argued Sept. 10, 1951.

Decided Sept. 21, 1951.

Edmund J. Canzona, Red Bank, argued the cause for the appellants (Parsons, Labrecque, Canzona & Combs, Red Bank, attorneys).

Leon Reussille, Jr., Red Bank, argued the cause for the respondent (Applegate, Foster, Reussille & Cornwell, Red Bank, attorneys).

Before Judges JACOBS, EASTWOOD and BIGELOW.

The opinion of the court was delivered by

JACOBS, S.J.A.D.

This is an appeal by the plaintiffs from a judgment for the defendant entered in the Monmouth County District Court.

Under a monthly rental agreement the plaintiffs stored their Piper Cub airplanes at the hanger owned and operated by the defendant Red Bank Airport, Inc. At about 8 P.M on July 13, 1949 the planes were destroyed by a fire which started in the parachute loft maintained in the hanger. Thereafter the plaintiffs instituted separate actions, which were consolidated for trial, seeking to recover damages from the defendant for the loss of their planes. The trial was conducted before the Judge of the Monmouth County District Court, sitting with a jury. At the close of the plaintiffs' case the defendant moved to dismiss but its motion was denied on the ground that the plaintiffs' 'proof of the bailment and failure to return the planes established a Prima facie case.' See New Jersey Manufacturers Association v. Galowitz, 106 N.J.L. 493, 496, 150 A. 408 (E. & A.1929); Berkowitz v. Pierce, 129 N.J.L. 299, 300, 29 A.2d 552 (Sup.Ct.1943). Thereupon the defendant introduced evidence in support of its position that the loss resulted from a fire not occasioned by its negligence. At the close of the entire case the defendant moved for judgment in its favor and this motion was granted on the ground that the presumption of negligence had been overcome by the defendant's evidence that 'the loss of the planes was occasioned by a fire which had occurred without negligence' on its part. See Armstrong Rubber Co. v. Erie Railroad Co., 103 N.J.L. 579, 583, 137 A. 596 (Sup.Ct.1927); Dolan v. Goodman Warehouse Corp., 165 A. 82, 11 N.J.Misc. 168, 169 (Sup.Ct.1933). In support of their position that this constituted legal error the plaintiffs urge that there was an issue of fact as to whether the defendant was negligent which should have been submitted to the jury for determination. Cf. Levine v. D. Wolff & Co., 78 N.J.L. 306, 309, 73 A. 73 (Sup.Ct.1909); Grannan v. Fox, 100 N.J.L. 288, 290, 126 A. 398 (E. & A.1924).

No stenographic record of the evidence in the district court was ever taken and we are therefore confined to the statement of the proceedings settled by the district court judge pursuant to Rule 1:2--23. The fire originated in the parachute loft at the east end of the hangar. There were only two keys to the loft, one in the office and the other in the possession of the parachute technician who was apparently away from the premises at the time of the fire. One of the defendant's experts testified that parachute lofts are usually set up within the hangars in airports comparable to that operated by the defendant; he acknowledged that it would have been less hazardous to have located the parachute loft in another building. Witnesses for the defendant testified that its airport was operated 'in the usual manner and custom as all other airports of its size' and that 'adequate fire prevention apparatus was available in the hangar'; however, there is nothing in the statement of the proceedings indicating whether any of the apparatus was actually used on July 13, 1949. Some of the planes in the hangar were stored upon their noses and it was necessary to pull their tails down from among crossed girders which were 16 feet from the hangar floor. Witnesses for the defendant testified that planes stored on their noses are no more difficult to remove 'than planes stored in the usual position with all wheels on the ground.' There were approximately 30 planes stored in the hangar and although at the time of the fire there were four persons on duty at the airport only two planes were saved. No explanation is advanced for the extent of the loss; indeed, the record is silent as to the manner in which the fire was originally discovered, the nature of its spread, the steps taken to combat or contain it, and the results of any investigation as to its cause.

The controlling legal principles, as we view them, may be stated briefly. Where goods are lost or damaged while in the bailee's custody a presumption of negligence arises and the bailor may institute a civil action to recover their value. Whether the allegations of the complaint sound in contract or tort would appear to be immaterial under our practice; in either event, the burden of proving the claim for relief (Rule 3:8--1) rests with the plaintiff-bailor and never shifts. However, proof by the plaintiff-bailor of the bailment and the loss or injury while in the bailee's custody establishes a Prima facie case...