Romney v. Garage

• Citation: 100 Utah 167,111 P.2d 545
• Decision Date: 25 March 1941
• Docket Number: 6243
• Court: Supreme Court of Utah
• Parties: ROMNEY v. COVEY GARAGE et al

111 P.2d 545

100 Utah 167

ROMNEY v. COVEY GARAGE et al

No. 6243

Supreme Court of Utah

March 25, 1941

Appeal from District Court, Third District, Salt Lake County; P. C Evans, Judge.

Action by E. L. Romney against the Covey Garage, to recover for injuries to the plaintiff's automobile which was stolen from the defendant's garage and wrecked by thieves. The American Equitable Assurance Company was an interpleaded defendant. Judgment for plaintiff, and the defendant appeals.

Judgment affirmed.

Stewart Stewart & Parkinson and Edwin B. Cannon, all of Salt Lake City, for appellant.

Judd Ray, Quinney & Nebeker, of Salt Lake City, for respondent.

WOLFE, Justice. LARSON, McDONOUGH, and PRATT, JJ., concur. MOFFAT, C. J., concurs in the result.

OPINION

WOLFE, Justice.

This is an appeal from a judgment of the District Court sitting without a jury awarding damages to respondent (plaintiff below) for injuries to his car which was stolen from appellant's (defendant's) garage and wrecked by thieves.

On April 30, 1938, respondent left his automobile at appellant's garage to be stored for the night. As was his custom, and the custom of the Garage, his keys were left in his car and it was parked in the Garage by an employee of appellant. Three employee-attendants were on duty at the Garage that evening. None of them observed anyone enter the part of the Garage where cars were stored. Shortly after respondent's car had been parked in the Garage, the attendants observed the car being driven from the Garage by two strange men. One of the employees gave chase and followed the car until it was wrecked by the thieves driving it.

In his complaint respondent alleged his bailment to appellant, that appellant was negligent in failing to keep the car safe, that the car was damaged, and that the damage to the car was "the proximate result of said negligence of the defendant."

Appellant was a bailee for hire and was therefore bound to exercise the degree of care to protect property bailed to him which an ordinary prudent man under similar circumstances would exercise toward his own property. See many cases collected in annotations in 15 A. L. R. 682, 42 A. L. R. 135, and 65 A. L. R. 431.

The courts have not been in agreement as to the legal principles to be applied in cases of this type. Courts generally agree in the proposition that the ultimate burden of proof, i. e., the risk of non-persuasion, rests at all times with plaintiff (bailor). 26 A. L. R. 232, 48 A. L. R. 384. But these courts divide sharply as to what proof on the part of bailor is sufficient to sustain his burden of proof. While courts generally agree that proof of (1) bailment and (2) failure to return or damage to the bailed chattels makes a prima facie case for bailor upon which he may recover in the absence of proof by bailee, the courts have taken various views regarding the proof by bailee necessary to overcome bailor's prima facie case.

A majority of the cases hold that in an action ex delicto if bailee, to meet bailor's prima facie case, proves that the bailed chattels were damaged or destroyed by fire or theft or other cause which on its face does not disclose negligence by bailee and is not inconsistent with due care on his part, bailee has overcome the presumption of bailor's prima facie case and the burden of going forward reverts to bailor to prove specific acts of negligence by bailee. Swain v. Twin City Motor Co., Inc., 207 N.C. 755, 178 S.E. 560; Firestone Tire & Rubber Co. v. Pacific Transfer Co., 120 Wash. 665, 208 P. 55, 26 A. L. R. 217; Stone v. Case, 34 Okla. 5, 124 P. 960, 43 L.R.A., N.S., 1168; Glover v. Spraker, 50 Idaho 16, 292 P. 613; Homan v. Burkhart, 108 Cal.App. 363, 291 P. 624; Perera v. Panama-Pacific Int. Exp. Co., 179 Cal. 63, 175 P. 454; Scott v. Columbia Compress Co., 157 Ark. 521, 249 S.W. 13; 3 R. C. L. 151; 27 R. C. L. 1002. In such situations failure by bailor to prove specific acts of negligence by bailee precludes recovery as a matter of law. Swain v. Twin City Motor Co., Inc., supra.

But, on the other hand there are numerous cases which hold that, after bailor proves the bailment and the damage or loss, the burden is on bailee to show that the damage or loss was not due to his negligence and he stands the risk of non-persuasion on this point. Miles v. International Hotel Co., 289 Ill. 320, 124 N.E. 599; Employers' Fire Ins. Co. v. Consolidated Garage & Sales Co., 85 Ind.App. 674, 155 N.E. 533; Baione v. Heavey, 103 Pa.Super. 529, 158 A. 181; Steenson v. Flour City Fuel & Transfer Co., 144 Minn. 375, 175 N.W. 681; Hoel v. Flour City Fuel & Transfer Co., 144 Minn. 280, 175 N.W. 300; Wendt v. Sley System Garages, Inc. , 124 Pa.Super. 224, 188 A. 624; Mee v. Sley System Garages, Inc., 124 Pa.Super. 230 188 A. 626; Keenan Hotel Co. v. Funk, 93 Ind.App. 677, 177 N.E. 364; Harding v. Shapiro, 165 Minn. 248, 206 N.W. 168; Berry on Automobiles, 6th Ed., Vol. 2, p. 1328, Sec. 1628.

We believe that the views expressed in the latter group of cases more nearly express the proper rule of law and accord more nearly with justice and reality in motor vehicle bailment situations.

The principles which apply are in the nature of those which are involved in the doctrine of res ipsa loquitur. In fact this doctrine has been by some authorities mentioned as applicable. While the doctrine of res ipsa loquitur is applied in those cases where it would be quite unlikely that the accident would have happened but for the negligence of him who was charged with supervision and control of the instrumentality up to the time of the event, yet in cases of bailment for service, care, for guarding the chattel, the assumption may be indulged that theft or fire would not ordinarily occur but for negligence. At least the policy of the law demands that he who had the goods under his care explain satisfactorily why they were stolen or damaged just as the doctrine of res ipsa loquitur demands that he who had control satisfactorily explain the reason for the accident. And unless in law it can be said that the explanation is satisfactory the question of whether the bailee is or is not negligent is a jury question.

That the question was for the jury where it could not be said as a matter of law that the explanation for the mishap was so satisfactory or complete as to overcome the inference negligence of which the event bespeaks was recently held by this court in White v. Pinney, ...