Parnell v. Rohrer Chevrolet Co., A--1350

• Citation: 231 A.2d 824,95 N.J.Super. 471
• Decision Date: 29 June 1967
• Docket Number: No. A--1350,A--1350
• Parties: John PARNELL, Plaintiff-Respondent, v. ROHRER CHEVROLET CO., Inc., Defendant and Third-Party Plaintiff-Respondent, v. GENERAL ACCIDENT FIRE & LIFE ASSURANCE CORP., Ltd., Third-Party Defendant-Appellant.
• Court: New Jersey Superior Court – Appellate Division

Page 471

95 N.J.Super. 471

231 A.2d 824

John PARNELL, Plaintiff-Respondent, v. ROHRER CHEVROLET CO., Inc., Defendant and Third-Party Plaintiff-Respondent, v. GENERAL ACCIDENT FIRE & LIFE ASSURANCE CORP., Ltd.,

Third-Party Defendant-Appellant.

No. A--1350.

Superior Court of New Jersey

Appellate Division.

Argued May 1, 1967.

Decided June 29, 1967.

James A. Mullen, Jr., Camden, for third-party defendant-appellant (Kisselman, Devine, Deighan & Montano, Camden, attorneys).

James J. Casby, Jr., Camden, for defendant and third-party plaintiff-cross-appellant.

Paul R. Melletz, Camden, for plaintiff-respondent (Albert J. Klein, Camden, attorney).

Before Judges CONFORD, FOLEY, and LEONARD.

The opinion of the court was delivered by

CONFORD, S.J.A.D.

This action was instituted by the owner of an automobile to recover damages for its being stripped of its most essential parts while in the custody of defendant automobile agency. The latter, which had had possession of the vehicle while repairing it for plaintiff, brought a third-party claim against the third-party defendant insurance Company on a liability policy which it deemed to cover it for liability on plaintiff's claim. Judge Rizzi, sitting in the county district court without a jury, found for plaintiff against the automobile agency ('Rohrer,' post), and also for the latter against the insurance company ('General Accident,' post). Rohrer appeals the determination in favor of plaintiff; General Accident, that in favor of Rohrer on the third party claim.

The statement of evidence certified by the trial court shows the following.

Plaintiff had purchased a 1962 Chevrolet automobile in September 1964 for $1,995. On October 9, 1964 he left it with Rohrer for repairs, and a 'valve job' was performed on it at a charge of $134.88. Plaintiff was notified October 14 that the car was ready but he did not call for it because he did not have the funds to pay the bill and Rohrer refused to deliver the car without payment.

Plaintiff did not come to pay for and pick up the vehicle until November 9, 1964. In the meantime, it was kept in a large cyclone-fenced enclosure behind the Rohrer building which was apparently locked at night. When plaintiff called on that date for the car he was told that it had been 'stripped.' It appeared that a hole had been cut in the fence sometime during the previous three days (including a weekend) and that several cars had been stripped. Removed from plaintiff's automobile were four wheels and tires, the rear axle and rear end, the battery, transmission, carburetor, radiator and manifold distributor valve cover. A stipulated repair bill for labor and parts to rehabilitate the vehicle was $1,662.84. The bill shows that a great many other portions and parts of the car in addition to the major parts removed were damaged in varying degrees and required repair or replacement. There was evidence that the parts removed had been dragged through the fence hole and carted away by the miscreants.

Further reference to the material facts is reserved for the discussion of the legal issues involved.

I

The action against Rohrer is predicated on its asserted negligence as a bailee in safekeeping plaintiff's car. The degree of care owing by a bailee depends on the nature of the bailment. If, as here found by the trial court, the bailment is one for the mutual benefit of bailor and bailee, the duty is to exercise reasonable care for the safekeeping of the chattel bailee. Rodgers v. Reid Oldsmobile, Inc., 58 N.J.Super. 375, 380, 156 A.2d 267 (App.Div.1959). As to the lesser duty of a gratuitous bailee, see Nelson v. Fruehauf Trailer Co., 20 N.J.Super. 198, 89 A.2d 445 (App.Div.1952), affirmed on other grounds 11 N.J. 413, 94 A.2d 655 (1953).

Rohrer contends it was merely a gratuitous bailee at the time of the loss because a reasonable time after completion of the repairs had elapsed without retaking of the car and thereafter the bailment was only for the benefit of the bailor. We disagree. The bailment was still one for mutual benefit since Rohrer had the security interest in the car of a garagekeeper's lien for the amount due it. N.J.S. 2A:44--21, N.J.S.A. The case of Robinson v. Southern Cotton Oil Co., 108 S.C. 92, 93 S.E. 395 (Sup.Ct.1917), does not support Rohrer's argument that once a reasonable time for the bailor to pick up the chattel has expired the duty of the bailee changes to that of a gratuitous bailee regardless of any other circumstances. On the special facts of this case Rohrer retained sufficient interest in the property to continue the character of the bailment as one for mutual benefit until the loss. Moreover, lienors in possession are generally under a duty of reasonable care. Cf. Zanzonico v. Zanzonico, 2 N.J. 309, 316, 66 A.2d 530 (1949).

We find sufficient in the proofs to justify the trial court finding of negligence by Rohrer notwithstanding that the burden of persuasion on the issue remained with plaintiff throughout the case. See Rodgers v. Reid Oldsmobile, Inc., supra, 58 N.J.Super., at p. 380, 156 A.2d 267. In this regard the court referred to evidence that the storage enclosure was completely dark at night, there was no watchman during the period when the depredation occurred although Rohrer had had a watchman previously, and no burglar alarm or other system for protection of the property was maintained. Nor do we think Rohrer was prejudiced in the court's formulation of the basis for its conclusion in terms of the failure of defendant to 'overcome the presumption of negligence which existed in favor of plaintiff.'

It is true that the bailee has only the burden of coming forward to meet the 'procedural presumption' of negligence which arises upon the plaintiff's showing of the bailment and that the goods were damaged while in possession of the bailee, the bailor retaining the ultimate burden of persuasion on the issue of negligence. Rodgers v. Reid Oldsmobile, Inc., supra, at p. 380, 156 A.2d 267. But we are satisfied the court's finding of negligence was based on a weighing of the proofs and that it did not accord the presumption any artifical probative weight.

Finally, we agree with the court that plaintiff could not reasonably be accounted contributorily negligent by mere reason of his financial inability to reclaim his car sooner.

We affirm the determination of Rohrer's liability to plaintiff.

II

General Accident contends that the terms of the policy did not on the facts shown justify a determination of coverage of Rohrer's liability to plaintiff.

The insurer undertook to 'pay on behalf of the insured (Rohrer) all sums which the insured shall become legally obligated to pay as damages because of:

'* * *ure

THEFT. loss to an automobile caused by theft of the entire automobile;

RIOT AND VANDALISM. loss to an automobile caused by riot, civil commotion, malicious mischief or vandalism.'

Rohrer argues that its liability to plaintiff arose from acts of vandalism within the policy coverage; alternatively, that the extent of the damage to the car fairly connotes theft of the entire automobile. General Accident contends that the loss here was basically the result of theft; and that the express...