Manhattan Fire & Marine Ins. Co. v. Grand Central Garage

• Decision Date: 05 April 1932
• Docket Number: 2940.
• Citation: 9 P.2d 682,54 Nev. 147
• Parties: MANHATTAN FIRE & MARINE INS. CO. v. GRAND CENTRAL GARAGE.
• Court: Nevada Supreme Court

9 P.2d 682

54 Nev. 147

MANHATTAN FIRE & MARINE INS. CO. v. GRAND CENTRAL GARAGE.

No. 2940.

Supreme Court of Nevada

April 5, 1932

Appeal from District Court, Washoe County; Geo. A. Bartlett, Judge.

Action by the Manhattan Fire & Marine Insurance Company against the Grand Central Garage. From a judgment for the defendant and an order denying its motion for a new trial, plaintiff appeals.

Affirmed.

Ernest S. Brown, of Reno, for appellant.

Le Roy F. Pike, of Reno, for respondent.

DUCKER J.

This action was instituted in the lower court by appellant to recover damages from the respondent, resulting from the negligence of an employee of the latter in driving an automobile belonging to a patron of the respondent. The automobile was wrecked by colliding with a power pole and fire plug in the city of Reno. Appellant was the insurer of the automobile, and paid damages to the owner in the amount of $656.30. The appellant was subrogated to the rights of the owner.

The action was tried by the court without a jury. The appeal is from the judgment rendered and from an order denying a motion for a new trial. The facts in the main are undisputed.

At the time of the accident respondent was a partnership engaged in the business of conducting a public garage in the city of Reno, and maintained a day and night service. On December 5 1928, John A. Capper placed his Packard 5-passenger sedan automobile with the respondent for storage and the service usually connected therewith, for the payment of $10 per month. Under the conditions of the contract, the respondent Grand Central Garage, was to store the car, service it, and deliver it to the home of Mrs. Marion Dowd, Capper's daughter, or her mother, Mrs. Capper, when ordered by either of them to do so, and, if either brought the car to the garage, she was to be taken home by the garageman and the car returned to the garage. This was the entire contract, and was the usual service given other patrons of the respondent.

The automobile was kept in the garage under the foregoing contract to and including the morning of March 18, 1929. One William Tener, known to Mrs. Dowd and her mother as Fred, was an employee of the respondent during all of the time mentioned. He was the nightman at the garage. His hours of work were from 6 p. m. to 6 a. m., and the nature of his services was to attend to the business of respondent as heretofore stated. At about 9 o'clock on the evening of March 17th Mrs. Capper called up the garage by telephone. The call was answered by Sam Frank, one of the owners of the garage, and Mrs. Capper told him she would like to speak to Fred. Frank called Tener to the telephone. As a witness for plaintiff, Mrs. Capper testified that she told Fred over the telephone at this time that she wanted the car delivered at 8 o'clock the next morning at the station for the train coming from San Francisco, for Mrs. Dowd, her daughter, and that Tener said, "All right." William Tener, as a witness for the plaintiff, testified that when he went to the telephone Mrs. Capper said, "That being that I done all the extra work for Mrs. Dowd, would I go down to the early morning train and meet Mrs. Dowd when she came in." On being asked by counsel for plaintiff if she said the 8 o'clock train in the morning, he answered "Absolutely not; didn't specify, said the early morning train." This constitutes the only conflict in the entire evidence.

Some time in the early morning of March 18th Tener took the Capper automobile out of the garage and wrecked it.

The answer denied the allegations of the complaint, and alleged that said William Tener "while driving the said automobile claimed to have been owned by said John A. Capper, was acting in the employ of said John A. Capper or his agent, and was not under the influence or control of the defendant or in the employ of the said defendant at said time." The trial court found that at the time of the accident said William Tener was acting as the agent of the said John A. Capper and Mrs. John A. Capper, his wife, and that the said William Tener was not, at the time of the accident in which said automobile was damaged, in the employ of the defendant, Grand Central Garage, and was acting outside of the scope of his duties as an employee of the Grand Central Garage.

The errors assigned amount to a claim by appellant that the evidence is insufficient to support the finding upon which the judgment is based. In this regard appellant contends that its action is for a breach of the contract to store the Capper automobile, and that the defense that respondent's servant was not acting within the scope of his employment is not available, and that, after appellant had proved a prima facie case by showing the contract, and the failure of respondent to deliver the automobile on demand, the burden was on the respondent to show that its loss or damage was not due to its negligence. This contention presents a correct statement of the law applicable to an action for breach of a contract of bailment for hire. The rule is stated in 6 C.J. page 1158: "The rule in the more modern decisions is that the proof of loss or injury establishes a sufficient prima facie case against the bailee to put him upon his defense. Where chattels are delivered to a bailee in good condition and are returned in a damaged state, or are lost or not returned at all, the law presumes negligence to be the cause, and casts upon the bailee the burden of showing that the loss is due to other causes consistent with due care on his part."

The reason for the rule is given in Davis & Son v. Hurt, 114 Ala. 146, 21 So. 468, 469, as follows: "The rule is founded in necessity, and upon the presumption that a party who, from his situation, has peculiar, if not exclusive knowledge of facts, if they exist, is best able to prove them. If the bailee to whose possession, control, and care goods are intrusted will not account for the failure or refusal to deliver them on demand to the bailor, the presumption is not violent that he has been wanting in diligence, or that he may have wrongfully converted, or may wrongfully detain them. Or, if there be injury to or loss of them during the bailment, it is but just that he be required to show the circumstances, acquitting himself of the want of diligence...