Pinto v. Bridgeport Mack Trucks, Inc.

• Decision Date: 14 January 1983
• Docket Number: No. 1285,1285
• Citation: 458 A.2d 696,38 Conn.Supp. 639
• Court: Connecticut Superior Court
• Parties: Alfred PINTO v. BRIDGEPORT MACK TRUCKS, INC.

Page 696

458 A.2d 696

38 Conn.Supp. 639

Alfred PINTO v.BRIDGEPORT MACK TRUCKS, INC.

No. 1285.

Superior Court of Connecticut Appellate Session.

Argued June 30, 1982.

Decided Jan. 14, 1983.

Philip Baroff, Bridgeport, with whom, on the brief, were Louis I. Gladstone and Matthew B. Woods, Bridgeport, for appellant(defendant).

Gregory M. Conte, Bridgeport, with whom, on the brief, was Richard K. Mulroney, Bridgeport, for appellee(plaintiff).

COVELLO, Judge.

The plaintiff brought this action seeking to recover the fair value of his work tools which were stolen from his employer's premises.The plaintiff claimed that his employer was negligent in failing to lock the front door, in leaving the premises unattended, in failing to secure his tools by padlocking and chaining or in failing to provide an enclosed area for the storage of tools.

The essentially undisputed facts are as follows: The plaintiff was a diesel mechanic.The defendant was his employer.Their relationship had existed for nine years.Pursuant to industry custom, the defendant supplied all larger tools while the employees furnished their own hand tools.The plaintiff was hired with that understanding.Pursuant to that custom and their understanding, the plaintiff maintained a two-piece tool chest in the work area of his employer's premises.The top section loaded with the plaintiff's tools weighed approximately 500 pounds.There were about twenty-five other tool boxes scattered around the work area.

On April 19, 1979, the defendant's volume of work required the services of two shifts of mechanics.The first shift worked from 8 a.m. to 4:30 p.m.The second shift worked from 3 p.m. to 11:30 p.m. Edwin MacDonald was the foreman of the second shift.On April 19the plaintiff concluded his work on the first shift.After locking his tools in his box, he left the box in the rear of the work area alongside the truck he was repairing.The second shift reported for work as usual.The defendant was open for business that night until 11 p.m.A chain link fence surrounding the sides and rear of the building had been locked at the end of the day shift.The only access to the 39,000 square foot building was through the front door which led into the showroom area, the work area being to the rear of the building.

In accordance with their custom, the second shift employees took their "lunch" break between 7 and 7:30 p.m., some leaving the building to do so, while others ate in a rear lunchroom.During this half hour, foreman MacDonald went back and forth between the lunchroom and work area answering phone calls and the like.He was out of the work area a total of ten minutes during the entire break.

Upon return from the "lunch" break, an employee noticed a battery charger was missing.The following morning, the plaintiff discovered that the top section of his box of tools weighing about 500 pounds was also missing.There were no signs of a forced entry into the building, it being ascertained that the foreman had checked to see that the premises were locked at the end of the second shift.

The plaintiff himself testified that it was the custom in the automotive repair business for employees to leave their tools in the shop area at the end of each shift.Within the preceding year there had been discussions at informal safety meetings about storing the employees' tools to avoid their damaging or being damaged by the large trucks moving about the area.The defendant's agents had offered to supply such an area where tool boxes could be wheeled and to obtain chains to secure the boxes.This had never come to pass.Despite these concerns, there was uncontroverted testimony that this was the first theft from the building in nine years.

The court concluded that "[s]ince the tools were being left on the premises of the employer overnight with the employer's knowledge and consent, a mutual bailment is found."This is not the case here.

A bailment is a consensual relation and it includes, in its broadest sense, any delivery of personal property in trust for a lawful purpose.8 C.J.S.Bailments§ 1, p. 314.Assumption of control is the determinative factor."[A]'bailee' is one who receives personal property from another in trust for a specific purpose, with a contract, express or implied, that the trust shall be faithfully executed and the property returned or duly accounted for when the special purpose is accomplished ...."8 C.J.S.Bailments§ 1, p. 321.

Here there was no delivery of the plaintiff's tools to the defendant nor receipt of them in a sense that could serve as a basis for concluding that the defendant had assumed control over them.Delivery connotes a handing over or surrender of possession to another.See Ballentine's Law Dictionary.Locking the tools in a box and leaving the box wherever one chooses in the work area of the employer's premises, pursuant to a trade custom, is not consistent with a handing over or surrender of possession of either the tools or the box to the employer within the meaning of a bailment.

A conclusion that there was no bailment is not necessarily dispositive of the ultimate issue, as the existence of a bailment does nothing more than create a presumption of negligence."The failure of a bailee to return goods delivered to him raises a presumption that their nonproduction is due to his negligence.Dejon v. Smedley Co., 108 Conn. 659, 667, 144 A. 473[1929]."Frissell v. John W. Rogers, Inc., 141 Conn. 308, 310, 106 A.2d 162(1954)."This presumption prevails unless and...