Newton Chevrolet Co. v. Canle

• Decision Date: 17 April 1948
• Parties: NEWTON CHEVROLET CO. v. CANLE.
• Court: Tennessee Court of Appeals

212 S.W.2d 392

31 Tenn.App. 67

NEWTON CHEVROLET CO. v. CANLE.

Court of Appeals of Tennessee, Eastern Section.

April 17, 1948

Certiorari Denied by Supreme Court June 12, 1948.

Appeal in Error from Circuit Court, Hamilton County; Fred B Ballard, Judge.

Action by Marcelino Canle against the Newton Chevrolet Company to recover value of an automobile with contents. Judgment for plaintiff, and defendant appeals in error.

Affirmed.

Chambliss, Chambliss & Brown, of Chattanooga for plaintiff in error.

Charles A. Noone, of Chattanooga, for defendant in error.

McAMIS Justice.

This is an action to recover the value of an automobile with contents which disappeared in a manner not explained after the automobile had been left overnight at the garage of Newton Chevrolet Company for the purpose of having it washed and greased. The jury found fot the plaintiff. Defendant's motion for a new trial was overruled, judgment was entered on the verdict and the present appeal in error resulted. The assignments present the single insistence that the evidence was not sufficient to take the case to the jury.

It seems to be agreed that the relationship between the parties was that of bailor and bailee and, the bailment being for the mutual benefit of the parties, that the rule of ordinary care controls.

The declaration charges that the 'loss or theft' of the automobile and other personal property was caused by one or more of the several acts of negligence set forth in the declaration, some one of which singly, or more than one of which combined, were the proximate cause of the loss. The specific acts of negligence charged are that the defendant negligently failed to guard the premises properly; failed to keep the premises locked; failed to remove the ignition key thereby making theft easier; failed to have in force a system of giving a receipt or check to the person leaving an automobile and requiring the production of such receipt or check before delivering the automobile; kept in its employ careless, negligent or dishonest employees; or 'that the defendant carelessly and negligently, in some other manner unknown to the plaintiff, failed to properly safeguard his property and to redeliver the same to him as and when contracted and agreed.'

We think it is a fair construction of the declaration that the cause of action is grounded upon negligence rather than upon a breach of contract to redeliver the property. However, we do not construe it as charging that the loss occurred as the result of any one of the specific acts of negligence charged. The charge is that the loss occurred as the result of some one of the acts mentioned or more than one of them combined or 'in some other manner unknown to the plaintiff.' It is not to be implied that plaintiff had any knowledge of how the loss occurred or that he based his action upon any known act of negligence. The implication is to the contrary. For this reason we think when the bailor showed delivery of the automobile and contents and that return of property had not been made upon demand, it became the duty of the bailee to establish by proof from which a legitimate inference could be drawn a reasonable excuse for its failure to return the property or that it was guilty of no negligence in the handling of the property.

In Runyan v. Caldwell. 26 Tenn. 134, the action was one for the value of a slave based upon the negligence of the bailee in handling resulting, it was claimed, in failure to return the slave to the bailor. Mr. Justice Green, the author of the opinion, sums up the holding of the Court thus: 'We think, therefore, that it is the settled law, that in a bailment for hire the onus probandi of negligence is upon the bailor. After the bailor has proved the contract and delivery of the goods, the burden of proof is upon the bailee to show their loss, and the manner they were lost, and this throws the burden of negligence upon the bailor.'

In Noel & Co. v. Schuur, 140 Tenn. 245, 204 S.W. 632, 633; Runyan v. Caldwell, supra, is cited and the rule of that case reaffirmed as follows: 'The rule in cases of bailments in this state is that after the bailor has proved the delivery of the goods in good order the duty is upon the bailee to proceed to show the loss or partial loss and the manner in which they were lost.' It does not appear from the opinion whether the cause of action was based upon a breach of contract or upon negligence and the issue of liability was finally resolved under the provisions of the Uniform Warehouseman Act, Chapter 336, Acts of 1909, governing storage of perishable goods. However, we think it is significant that the opinion cites and discusses with seeming approval Holt Ice & Cold Storage Company v. Arthur Jordan Co., 25 Ind.App. 314, 57 N.E. 575, 580, holding that when the bailor shows that the property was in good condition when delivered and was returned in a damaged condition, produced by a cause not inherent in the goods themselves, a prima facie case is made out and the burden is then on the bailee 'to account for the injury to the goods in some manner consistent with the exercise of ordinary care.'

Both Runyan v. Caldwell and Noel & Co. v. Schuur were cited in Smith v. Noe, 159 Tenn. 498, 19 S.W.2d 245, 247, and the rule of the Runyan case again reaffirmed. That was a case based upon an innkeeper's contract of bailment involving the guest's baggage. The Court, speaking through Mr.

Justice Seiggart, significantly said: '* * * the same considerations which excuse the...