Rodgers v. Reid Oldsmobile, Inc.

• Citation: 156 A.2d 267,58 N.J.Super. 375
• Decision Date: 07 December 1959
• Docket Number: No. A--389,A--389
• Parties: Charles RODGERS, Jr., Plaintiff-Respondent. v. REID OLDSMOBILE, INC., Defendant-Appellant. Carolyn DE VUYST, Plaintiff-Respondent, v. REID OLDSMOBILE, INC., Defendant-Appellant. D. McCullagh MAYER, Plaintiff-Respondent, v. REID OLDSMOBILE, INC., Defendant-Appellant.
• Court: New Jersey Superior Court – Appellate Division

Page 375

58 N.J.Super. 375

156 A.2d 267

Charles RODGERS, Jr., Plaintiff-Respondent. v. REID OLDSMOBILE, INC., Defendant-Appellant.

Carolyn DE VUYST, Plaintiff-Respondent, v. REID OLDSMOBILE, INC., Defendant-Appellant.

D. McCullagh MAYER, Plaintiff-Respondent, v. REID OLDSMOBILE, INC., Defendant-Appellant.

No. A--389.

Superior Court of New Jersey Appellate Division.

Argued Nov. 23, 1959.

Decided Dec. 7, 1959.

Samuel A. Gennet, Newark, for defendant-appellant (Seymour Margulies, Jersey City, attorney).

Herbert C. Klein, Newark, for plaintiff-respondents (Budd, Larner & Kent, William O. Barnes, Jr., Harold D. Feuerstein, Marvin A. Sachs, Newark, attorneys).

Before Judges GOLDMANN, CONFORD and FREUND.

The opinion of the court was delivered by

CONFORD, J.A.D.

These are actions, consolidated for trial, by the owners of three motor vehicles, to recover for their total loss by fire while in the custody of the defendant for the purpose of being serviced. Judgments were entered for each of the plaintiffs on the verdict of a jury. The trial judge reserved decision on defendant's motion for dismissal after all the proofs were in, R.R. 4:51--2(a); and, after the verdict, he denied both defendant's motion for judgment notwithstanding the verdict and an alternative motion for a new trial. The actions are predicated on defendant's asserted negligence as a bailee in safekeeping the vehicles.

Defendant raises questions pertaining to the sufficiency of the proofs to establish an issue for the jury and to the competency and materiality of some of the plaintiffs' proofs, and concerning the establishment of damages.

Defendant operated a new-car automobile agency in Rutherford, with attendant facilities for servicing of cars. The establishment had been opened by defendant in December 1956 in a building previously used for the same kind of business and had been operated until a fire totally destroyed the structure and its contents on the night of December 26, 1956. Plaintiffs' cars were there at the time. The premises consisted of a single building, including showroom, servicing facilities and offices, with a parking area in the rear. Aside from the sales and office force, the employees included a service manager, Tripon, two mechanics, Flohn and Litschuer, a greaseman, and a porter. James C. Reid was president and general manager of the defendant corporation. Tripon had been out, ill, since December 1, 1956. Flohn was acting service manager on the day of the fire and did no repair work that day.

The first external indication of the fire was a sudden loud explosion heard by a neighbor about 11:40 p.m. and the eruption minutes thereafter of flames from the center of the roof which soon enveloped the whole building. The last person present was a salesman, Cacioppo, who left the premises about 10:30 p.m. by way of the service area after turning out lights and locking the doors.

Before considering the proofs bearing upon negligence the law on the liability of bailees in such a situation may be briefly reviewed. In the case of a bailment for mutual benefit, as here, the bailee is liable to the bailor for failure to exercise reasonable care for the safekeeping of the subject of the bailment which results in its loss or damage thereto. Kittay v. Cordasco, 103 N.J.L. 156, 134 A. 667 (E. & A. 1926). Upon the showing by the plaintiff of the bailment and of the damage to the goods while in the possession of the bailee there arises a procedural presumption of negligence requiring the defendant to come forward with evidence to show that the loss or damage occurred by reason of a cause other than its negligence, or, if it cannot do that, that it exercised due care. However, the burden of proof on the issues of negligence and proximate cause are borne by the plaintiff throughout. Bachman Chocolate Mfg. Co. v. Lehigh Warehouse & Transp. Co., 1 N.J. 239, 242, 62 A.2d 806 (1949); Hopper's, Inc. v. Red Bank Airport, Inc., 15 N.J.Super. 349, 352, 83 A.2d 457 (App.Div.1951); Clark v. National Movers Co., Inc., 53 N.J.Super. 325, 330, 147 A.2d 298 (App.Div.1959).

In the present case plaintiffs established the bailment and offered proof as to their damages on their direct case; defendant came forward with proofs purporting to show it exercised due care in maintaining the premises and in conducting its business in respect to the hazard of fire; and plaintiffs then offered affirmative proofs to show negligence. Defendant contends, however, that when all the proofs were in there was still lacking proof in relation to negligence and to a causal relationship between any asserted negligent conduct and the outbreak of fire, sufficient in weight to permit the requisite findings in those respects in terms of probability as distinguished from conjecture. It argues that since the initial presumption of negligence arising upon the proof of bailment and loss is only procedural and therefore loses its probative effect once the defendant has come forward with proof sufficient to enable the jury to find against the hypothesis of negligence and proximate cause, the plaintiff is then remitted to the same burden of persuasion on these issues which the law imposes upon the plaintiff in any ordinary negligence action, citing Silver Lining, Inc. v. Shein, 37 N.J.Super. 206, 117 A.2d 182 (App.Div.1955); In re Blake's Will, 21 N.J. 50, 120 A.2d 745 (1956); In re Weeks' Estate, 29 N.J.Super. 533, 103 A.2d 43 (App.Div.1954), among other authorities. We agree with the proposition stated. Particularly to be noted is the consideration that the presumption here involved is not one based upon the natural probative relationship in reason between the facts postulated and the hypothesis presumed, in which case it would not lose its probative value by mere reason of defendant's adequately discharging its obligation to come forward with evidence of due care. See 9 Wigmore on Evidence (3d ed. 1940), § 2491, p. 288; Meltzer v. Division of Tax Appeals, 134 N.J.L. 510, 512, 48 A.2d 842 (Sup.Ct.1946); Swain v. Neeld, 28 N.J. 60, 66--67, 145 A.2d 320 (1958); Silver Lining, Inc. v. Shein, supra (37 N.J.Super. at pages 217--218, 117 A.2d at pages 187, 188). Specifically, the eruption of fire does not itself bespeak negligence, Moore's Trucking Co. v. Gulf Tire & Supply Co., 18 N.J.Super. 467, 472, 87 A.2d 441 (App.Div.1952). The bailment presumption mentioned above is based primarily upon the policy consideration that the possessor of the goods at the time of damage is in a better position to explain the circumstances. See Hopper's, Inc. v. Red Bank Airport, Inc., supra (15 N.J.Super. at page 353, 83 A.2d at page 459).

We consequently turn to the evidence and appraise it against the criterion of its sufficiency to justify reasonable differences of opinion between fair-minded men as to whether it shows that the fire and loss were the probable results of negligence attributable to defendant. If so, the issues were properly left to the jury at the trial.

Defendant offered generalized proof of good 'housekeeping? of the premises and that the general and usual practices in the trade were followed in the operation of the service department.

At the trial plaintiffs put much emphasis on the use by defendant's mechanics of several five-gallon buckets of gasoline for purposes of cleaning automobile parts being repaired or serviced. The two mechanics testified the gasoline was mixed in 50-50 proportions with a non-flammable solvent. However, Tripon, the service manager, told Lieutenant Knyff, of the Rutherford Police Department, who was referred to Tripon by Reid in connection with his investigation of the fire, that the buckets each contained two or two and a half gallons of gasoline. Tripon did not mention to Knyff that there was solvent in the gasoline. He was not called to testify in the case. The mechanics testified that it was their practice to put covers on the buckets at the close of the work-day; that only Litschuer was using a bucket on December 26, 1956 and that it was covered when he finished work that day about 5:30 p.m. It was admitted there may have been grease on the bucket exteriors. Flohn said the gasoline buckets were checked regularly because 'there is always a chance something might happen.'

Particular significance is attributed by plaintiffs to section 3 of Article VII of the local fire-prevention code which prohibits the use of flammable liquids with a flash point below 100 F. in any garage for washing parts or removing grease or dirt unless in a 'special closed machine used for the purpose.' Another section of the code lists gasoline among liquids having a flash point below 25...