Knight v. H & H Chevrolet
| Decision Date | 12 August 1983 |
| Docket Number | No. 82-405,82-405 |
| Citation | 215 Neb. 166,337 N.W.2d 742 |
| Parties | , 36 UCC Rep.Serv. 1315 Ronald W. KNIGHT, Appellant, v. H & H CHEVROLET, a Nebraska corporation, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
Bailment: Negligence: Proof: Case Overruled. In a bailment for hire or a mutually reciprocal bailment case, in the absence of statutory or contractual provisions to the contrary, once bailor proves delivery of property to bailee in good condition and failure to redeliver upon timely demand, the burden is irrevocably fixed upon bailee to prove by a preponderance of the evidence that he has exercised due care to prevent the loss, damage, or destruction of the property. This principle applies to all bailment for hire cases, whether brought in tort or in contract, in which bailee has exclusive control over the property at the time it was lost, destroyed, or damaged. Nash v. City of North Platte, 198 Neb. 623, 255 N.W.2d 52 (1977), and its predecessors are overruled.
Michael W. Pirtle, McCormack, Cooney, Mooney & Hillman, P.C., Omaha, for appellant.
Ronald F. Krause, Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellee.
This is a bailment action brought by the plaintiff bailor to recover for the loss of his automobile while it was in the possession of the defendant bailee for purposes of repair. The jury returned a verdict in favor of the defendant and the plaintiff has appealed.
On Wednesday, May 28, 1980, the plaintiff, Ronald W. Knight, delivered his 1980 Corvette automobile to the premises of the defendant, H & H Chevrolet, to have some warranty repair work done. Plaintiff talked to the defendant's service adviser, who had the plaintiff fill out a service order for the repair work and told plaintiff that the repairs should be completed by Friday, May 30. The plaintiff left his automobile and keys with the service adviser.
On Friday, May 30, the service adviser telephoned the plaintiff and told him that it was necessary to order parts and that the repair work would be delayed. The service adviser also told plaintiff that the car was drivable and that plaintiff could pick up the car while the parts were on order. The plaintiff did not pick up his car and the car was moved into a fenced lot located alongside the defendant's garage.
On Saturday, May 31, the service adviser observed plaintiff's car parked in the fenced lot. He searched the car to make sure that the keys were not in it and that the doors were locked. It was the defendant's practice to keep keys either in the car or in the "tower" inside the garage.
The service adviser knew that a Corvette was a "high risk" automobile susceptible to theft and vandalism, and testified at trial that he intended to move the automobile into the garage for safekeeping over the Memorial Day weekend but became busy with other customers and forgot to move the car.
The open lot in which plaintiff's automobile was placed was surrounded by a Cyclone fence topped with barbed wire and had two gates, each of which was chained and padlocked when the garage was closed. The lot is located at a busy intersection in Omaha, Nebraska.
Plaintiff's automobile was apparently stolen from the defendant's lot on Sunday morning, June 1, 1980. A witness dining at a restaurant located across the street from the lot observed a young man walk up to the Corvette, hesitate at the door, enter the car, and, after a short time, drive the car around the garage and out of sight.
On Monday morning, June 2, the defendant's employees discovered that a chain securing one of the gates to the fenced lot had been cut. A visual inventory by the employees failed to disclose that plaintiff's automobile was missing.
On Wednesday, June 4, 1980, the service adviser was ready to commence repairing the plaintiff's automobile but was unable to find the car. The service adviser assumed that plaintiff had picked up his automobile and telephoned the plaintiff to have him return the car, only to learn that plaintiff had not picked up his car.
A thorough search of the garage premises failed to locate either the car or the keys, and neither the vehicle nor the keys have ever been found. The police were contacted, and on Saturday, June 7, 1980, the service adviser notified the plaintiff that his car had been stolen and could not be found.
Following demand and refusal, this bailment action was commenced. The third amended petition, on which the case was tried, alleged that plaintiff had delivered the Corvette to the defendant, that the defendant had impliedly promised to return the car after completing the repair work, and that the defendant had breached its implied promise by failing to timely redeliver the car. The defendant's answer alleged that the loss of the plaintiff's automobile was proximately caused by the intervening independent acts of an unknown thief and that defendant was not negligent.
The case was tried to a jury. The parties stipulated at trial that plaintiff's automobile had a fair and reasonable value of $12,500, and that the transaction between the plaintiff and the defendant constituted a bailment for hire or mutually reciprocal bailment, and the jury was so instructed.
Over the plaintiff's objections the jury was also instructed: "Before the plaintiff can recover against the defendant in this case, the burden is upon the plaintiff to establish by a preponderance of the evidence each and all of the foregoing [sic] propositions:
The jury brought in a verdict for the defendant and the plaintiff has appealed.
The issue on this appeal is whether or not the instruction placing upon the plaintiff the burden of proving the defendant's negligence was correct. The plaintiff contends that the bailment action here was pleaded in contract and did not allege negligence and that the defendant's pleading that it was not negligent placed the burden upon the defendant of proving the lack of negligence. Plaintiff argues, on several grounds, that in a bailment for hire case the burden of proving negligence on the part of the bailee should not rest upon the bailor but, instead, the burden of proving that it was not negligent should rest on the bailee.
The defendant contends...
To continue reading
Request your trial
-
Wasland v. Porter Auto & Marine, Inc.
...arose from their negligence. Southard v. Hansen, 376 N.W.2d 56, 58 (S.D.1985) (citations omitted). See also Knight v. H & H Chevrolet, 215 Neb. 166, 337 N.W.2d 742, 745-46 (1983). "A depository for hire must use at least ordinary care for the preservation of the thing deposited." SDCL 43-39......
-
BUTLER COUNTY SCHOOL DIST. v. Meysenburg
...§13-910(5). See Nash v. City of North Platte, 198 Neb. 623, 255 N.W.2d 52 (1977), overruled on other grounds, Knight v. H & H Chevrolet, 215 Neb. 166, 337 N.W.2d 742 (1983). As noted by appellees, the federal courts have repeatedly stated, albeit in different factual contexts, that the lang......