N.J. Mfrs.' Ass'n Fire Ins. Co. v. Galowitz

• Decision Date: 19 May 1930
• Docket Number: No. 112.,112.
• Citation: 150 A. 408
• Parties: NEW JERSEY MFRS.' ASS'N FIRE INS. CO v. GALOWITZ.
• Court: New Jersey Supreme Court

150 A. 408

NEW JERSEY MFRS.' ASS'N FIRE INS. CO

v. GALOWITZ.

No. 112.

Court of Errors and Appeals of New Jersey.

May 19, 1930.

Syllabus by the Court.

A garage keeper, storing automobiles for hire, is a "warehouseman."

Syllabus by the Court.

A warehouseman is burdened with the duty of providing a reasonably fit and safe place to store the goods which he has accepted and to exercise reasonable care to see that they are safely kept.

Syllabus by the Court.

Whether or not a warehouseman has bestowed upon the goods stored with him the care required by law is a question of fact.

Syllabus by the Court.

Proof of loss of or injury to chattels while in the custody of the warehouseman establishes a prima facie case against the warehouseman to put him upon his defense.

Syllabus by the Court.

If the extent of damage is not proven, nominal damages only can be recovered, but, where actionable misconduct is shown, the law implies nominal damages at the least.

Syllabus by the Court.

An expert in automobile values, having inspected and known the condition of certain automobiles a month before they were destroyed by fire, as well as on numerous earlier occasions within the preceding year, and also having inspected unburned parts of them immediately after the fire, has sufficient knowledge to make evidential his opinion as to fair market value at the time of the fire; there being other supplemental testimony as to condition.

Appeal from Circuit Court, Mercer County.

Action by New Jersey Manufacturers' Association Fire Insurance Company against David Galowitz. Judgment of nonsuit, and plaintiff appeals.

Reversed.

Kellogg & Chance, of Jersey City, for appellant.

William L. Greenbaum, of Newark, and George Gildea, of Trenton, for respondent.

CASE, J.

This is an appeal from a judgment of nonsuit granted at the Mercer circuit of the Supreme Court. The issue on the appeal is whether the trial judge erred (1) in granting a nonsuit, and (2) in the exclusion of some and the admission of other evidence. Plaintiff is the assignee of Shifman Bros., who were the owners of four automobiles left by them with the defendant, a garage keeper, for hire. During the night of August 8, 1923, these automobiles, with others, were destroyed by fire in the defendant's garage. The action was instituted to recover for the damage thus done.

The complaint contains four counts. One is based directly on the alleged failure of the defendant to fulfill his obligations under the specific contract between him and Shifman Bros. The others pleaded in changing verbiage the failure of the defendant to perform his duty as bailee for hire.

Of the thirteen grounds of appeal, the first and second have to do with the nonsuit.

The legal concept of the action comes within the general subject of bailee for hire. The automobiles were stored at a price in defendant's garage. The principle of liability is that of a warehouseman. The duty of the warehouseman as bailee under the common law was to take reasonable care of the goods trusted to his charge. Section 21 of Chapter 133 of the Laws of 1907, entitled "An Act concerning warehouse receipts and to make uniform the law relating thereto" (4 Com. Stat. 1910, p. 0780), provides that "a warehouseman shall be liable for any loss or injury to the goods caused by his failure to exercise such care in regard to them as a reasonably careful owner of similar goods would exercise, but he shall not be liable, in the absence of an agreement to the contrary, for any loss or injury to the goods which could not have been avoided by the exercise of such care." That statute makes no change in this respect in the common-law doctrine, and is merely declaratory thereof. Levine v. D. Wolff & Co., 78 N. J. Law, 306, 73 A. 73, 138 Am. St. Rep. 617. The rule has been stated by the courts in varying language. This court has declared the following to be a correct statement: It is "the duty of a warehouseman to provide a reasonably fit and safe place to store goods which he has accepted, and to exercise reasonable care to see that they are safely kept." Grannan v. Fox, 100 N. J. Law, 288, 126 A. 398. Whether or not a warehouseman has bestowed upon the goods stored with him the care required by law is a question of fact. Levine v. D. Wolff & Co., supra; Grannan v. Fox, supra.

It was in evidence that on the night of August 8th, some time after 11:30 o'clock, a fire occurred in the defendant's garage, in the course of which twenty-four or twenty-eight automobiles were burned, and the building was so damaged that the timbers fell and were strewn across the cars, and that, although the defendant lived immediately next door and had a night watchman in the garage building, the defendant and those with him did not get the automobiles out. An inspection made the next morning showed that there were a big bus and other cars placed in the back of the Shifman cars, so that the latter could not be moved without first removing the former. The Shifman cars were brought into the garage on the evening preceding the fire in sufficiently good condition to be run in under their own power. The defendant testified that he saw two of the cars being brought in, and, so far as he could see, there was nothing the matter with them. When chattels are delivered to a bailee in good...