Prettyman v. Hopkins Motor Co.

• Decision Date: 02 April 1954
• Docket Number: No. 10614,10614
• Citation: 81 S.E.2d 78,139 W.Va. 711
• Court: West Virginia Supreme Court
• Parties: PRETTYMAN et al. v. HOPKINS MOTOR CO.

Page 78

81 S.E.2d 78

139 W.Va. 711

PRETTYMAN et al. v. HOPKINS MOTOR CO.

No. 10614.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 2, 1954.

Decided April 2, 1954.

Syllabus by the Court

1. In an action involving a bailment for hire proof by the bailor of delivery of the property to the bailee and of his failure to redeliver it upon legal demand establishes a prima facie case of negligence upon the part of the bailee and the burden of going forward with the evidence shifts to the bailee to show that his failure to redeliver was without his fault or negligence; but the burden of proof does not shift with the evidence but rests upon the bailor who must establish the negligence of the bailee by a preponderance of all the evidence.

2. When the evidence is conflicting, or when the facts, though undisputed, are such that reasonable men may draw different conclusions from them, the question of negligence is for the jury.

James P. Clowes, Joseph R. Curl, Handlan, Garden, Matthews & Hess, Wheeling, for plaintiff in error.

Schmidt, Hugus & Laas, Henry S. Schrader, Wheeling, for defendant in error.

HAYMOND, Judge.

This action of assumpsit was instituted in the Circuit Court of Ohio County on October 8, 1951, by the plaintiffs Clarence W. Prettyman and Helen Marie Prettyman, doing business as Prettyman Trucking Service, to recover from the defendant Hopkins Motor Company, a corporation, damages in the amount of $2000.00 alleged to have been sustained by the plaintiffs by reason of the failure of the defendant to return, without damage or injury, a certain 1947 Model Dodge four door sedan automobile owned by the plaintiffs which had previously been delivered to the defendant to be repaired and painted by the defendant for compensation to be paid to it for performing that service.

The case was called for trial October 20, 1952. The demurrer of the defendant to the declaration was overruled and the defendant filed a special plea and a plea of non assumpsit. To those pleas the plaintiffs filed their general replication. The special plea alleged, as a defense to the claim of the plaintiffs, that after the delivery of the automobile to the defendant the automobile and the place of business of the defendant were destroyed by a fire which occurred through no fault of the defendant and that, because of the fire, the defendant did not deliver the automobile to the plaintiffs upon their demand for such delivery. A jury was impaneled and selected to determine the issues presented by the foregoing pleadings.

By written stipulation of attorneys representing the respective parties it was admitted, in lieu of evidence of that effect, that the defendant, on and prior to October 20, 1949, the day of the fire, was a West Virginia corporation; that it occupied and possessed, as tenant of the owner, a building at No. 37 Twentieth Street in Wheeling, West Virginia, in which it operated a garage business for the purpose of dealing in, repairing, and servicing automobiles for compensation; that the equipment and the facilities of the building, the garage, and the business conducted by it, were under its exclusive management and control; that two or three days before October 20, 1949, the plaintiffs, the owners, delivered to the defendant a 1947 Dodge four door sedan automobile to be repaired and painted by the defendant; and that the value of the automobile on October 20, 1949, was $1417.50.

When the plaintiffs introduced evidence that they were the owners of the automobile, that it had been delivered to the defendant at its place of business for repairs to its fender, grill and light and to be painted by the defendant, and that the automobile was not returned to the plaintiffs for the reason that it was destroyed and rendered worthless by a fire which occurred in the building on October 20, 1949, and had also produced the foregoing stipulation, they concluded their proof. The defendant then moved the court to direct a verdict for the defendant. The court sustained the motion but, before directing the jury to return a verdict in favor of the defendant, permitted the plaintiffs to reopen the case and to offer evidence to establish negligence of the defendant with respect to the orgin and the cause of the fire. The plaintiffs, under protest, offered evidence for that purpose and, at the conclusion of all the evidence introduced by them, the defendant again moved the court to direct a verdict in its favor. The court overruled the motion and the defendant introduced evidence to show that the fire was not caused by any fault or negligence of the defendant. At the conclusion of all the evidence the defendant renewed its motion for a directed verdict. The court overruled the motion, gave certain instructions, and submitted the case to the jury. After some consideration of the case by the jury it was unable to agree upon a verdict and, before it had finally concluded its deliberations, the court directed it to return a verdict for the defendant. The jury returned a verdict as directed. The court overruled a motion by the plaintiffs to set aside the verdict and grant a new trial and, by order entered February 10, 1953, rendered judgment in favor of the defendant and awarded costs against the plaintiffs. To that judgment this Court granted this writ of error upon the petition of the plaintiffs.

The building occupied by the defendant as a tenant, and in which its garage and the automobile of the plaintiffs were located at the time of the fire which occurred in the morning of October 20, 1949, was a four story structure situated at No. 37 Twentieth Street in the City of Wheeling, the external walls of which were of brick construction and the interior of which was of wooden construction. The first or lower story, which extended below the level of the street, was known as the subbasement of the building. The height of the subbasement between its cement floor and the ceiling was approximately eight feet. This ceiling consisted of wooden joists on top of which was located the wooden floor of the second story. This floor contained in places grease and oil which had been deposited from automobiles serviced on that floor or story of the building. An inside stairway led from the subbasement to the second story. In the northwest corner of the subbasement was a furnace room approximately ten feet wide and thirty feet long the two interior walls or partitions of which were of wooden construction and extended from the floor to the ceiling. Entrance to this furnace room from inside the subbasement was provided by a wooden door in one of the partitions and at the north end of the furnace room there was a second wooden door in the outside wall of the building which was used for the remova of ashes from the furnace room. In this section were located the furnace of the heating system of the building and a coal storage bin. The northeast section of the subbasement contained a paint booth and a wash rack and the remaining portion was used for storage.

The furnace was approximately five feet wide, seven feet long and five feet high. In the front wall of the furnace was a small door which was used in its operation. Coal of the prepared size of about one inch in thickness was supplied as fuel for the furnace by an automatic, electrically controlled stoker, in the operation of which coal from the hopper of the stoker was transmitted to the fire box at the bottom of the furnace by means of a revolving metal shaft or worm. The fire box contained holes through which air was supplied to the coal by means of a fan with which the stoker was equipped. The process of firing the furnace consisted primarily in maintaining a fire in the fire box which ignited the coal as it was carried to the bottom of the fire box by the stoker when in operation, but in starting a fire in the furnace the coal at the top of the fire box was first ignited. The normal overall operation generally resembled the maintenance of a fire by means of a bellows.

When the plaintiffs, to avoid a directed verdict for the defendant, were required to offer proof to show that the fire which destroyed their automobile was caused by negligence of the defendant, they called as witnesses in their behalf an employee of the defendant who had acted as janitor of the building and had operated the stoker during a period of two and one half years preceding the fire, a consulting industrial fuel engineer of more than twenty six years' experience, two experienced municipal smoke prevention inspectors, a local fire inspector, and the chief of the local fire department. These witnesses testified with respect to the cause and the nature of the fire and the general condition of the building at and prior to its origin.

The employee of the defendant who operated the stoker testified that he came to work about fifteen minutes before seven o'clock in the morning of October 20, 1949; that he first went to a room on one of the upper floors of the building where he left his lunch; that he then went to the furnace room in the subbasement, opened the door of the furnace, and noticed 'a few hot coals' in it; that he stirred them 'a little bit', put a small amount of coal on the fire pot, and turned on the fan, which started the fire; that, after waiting for a few seconds and until the fire was started, he 'threw about four scoop shovels on, and by that time the fire was burning good.'; that the fire then 'was a good fire'; that he 'set the stoker up three notches'; and that he then went upstairs to do his work of cleaning the building. He further testified that there was a lead damper at the rear of the furnace which he did not adjust; that the damper was 'half open' or 'wide open'; that he did not clean the fire box that morning but had cleaned the furnace and the pipes a few days previously; that the fan and the stoker were working; that after he left the furnace room to clean the offices he returned about...