Johnson & Towers Baltimore, Inc. v. Babbington, 248
| Citation | 264 Md. 724,288 A.2d 131 |
| Decision Date | 10 March 1972 |
| Docket Number | No. 248,248 |
| Parties | JOHNSON & TOWERS BALTIMORE, INC. v. Lloyd C. BABBINGTON et al. |
| Court | Court of Appeals of Maryland |
M. Michael Maslan, Baltimore, for appellant.
Arthur L. Rhoads, Jr., Baltimore, for appellees.
Argued before HAMMOND, C. J., and BARNES, McWILLIAMS, FINAN, SINGLEY, SMITH and DIGGES, JJ.
When a person or persons unknown broke into the shop of Johnson & Towers, where large diesel engines were being repaired, a number of tool boxes belonging to employees, among them those of Babbington and Langenfelder, were stolen. Babbington and Langenfelder brought suit, complaining that the loss of the tool boxes was occasioned by Johnson & Towers' negligence. From judgments entered on jury verdicts for $900.00 in favor of Babbington and for $300.00 in favor of Langenfelder, Johnson & Towers has appealed.
It seems to be conceded that each of the two employees was required to furnish his own tools, and that it was impracticable, because of the weight of a full tool box, to take it home at the end of the day. Instead, they were stored in the shop, at first in a locked crib, and later-and this was the case at the time of the theft-in the work area.
A word about the situation of the Johnson & Towers' shop is in order. Located at the outskirts of Baltimore on U. S. Route 40, a well traveled highway, it is a large one-story masonry building, lighted outside and inside at night. On both sides of the building are four electrically activated overhead doors, each about 12 feet vide, 16 feet high and weighing 800 to 1,000 pounds. According to Johnson & Towers, each door was equipped with a factory installed locking mechanism at the bottom and was further secured by steel pins which had been inserted in the tracks on which the door ran. The sum of the testimony for Johnson & Towers was that a door's locks and pins together with the weight of the door would make it impossible to open it from the outside.
Babbington and Langenfelder took a different view of the situation. Their version was that the factory installed locking mechanism was not operable on some of the doors, and that it was because of this that Johnson & Towers had the steel pins inserted. They also testified that because the doors were spring-balanced, it was possible to lift them from inside or outside the shop without activating the electrical mechanism.
On a weekend in February 1968, Johnson & Towers' service manager was notified by the Baltimore County Police Department that one of the company's trucks had been found, abandoned at some distance from the firm's building. When he checked the premises, the service manager found that a hole, five or six inches in diameter, had been cut in the glass pane of one of the overhead doors. It seems to be agreed that since the pane was about four feet from the bottom of the door, an intruder could reach the steel pin and the electric switch, but not the factory installed locking device.
Johnson & Towers apparently concedes that it was a bailee for mutual benefit, who is under a duty to use ordinary care and diligence, Fox Chevrolet Sales v. Middleton, 203 Md. 158, 164, 99 A.2d 731 (1953); Schleisner Co. v. Birchett, 202 Md. 360, 363, 96 A.2d 494 (1953) and not a gratuitous bailee, who is liable only for wrongful conduct (sometimes referred to as gross negligence), Mickey v. Sears, Roebuck & Co., 196 Md. 326, 331, 76 A.2d 350 (1950); Schermer v. Neurath, 54 Md. 491, 496 (1880).
The court below instructed the jury that as a matter of law, this was a bailment for mutual benefit, and that Johnson & Towers was under a duty to exercise ordinary care in the protection of its employees' tools. The jury was then instructed fully on the questions of negligence and of contributory negligence. Johnson & Towers' failure to except to this...
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