Royal Ins. Co., Limited, of Liverpool, England v. Collard Motors, Inc.

• Decision Date: 21 February 1938
• Docket Number: 16735
• Citation: 179 So. 108
• Court: Court of Appeal of Louisiana — District of US
• Parties: ROYAL INS. CO., LIMITED, OF LIVERPOOL, ENGLAND, v. COLLARD MOTORS, Inc

179 So. 108

ROYAL INS. CO., LIMITED, OF LIVERPOOL, ENGLAND, v. COLLARD MOTORS, Inc

No. 16735

Court of Appeal of Louisiana, Orleans.

February 21, 1938

Rehearing refused March 21, 1938.

St Clair Adams & Son and P. A. Bienvenu, all of New Orleans, for appellant.

Jos. M Jones, Wm. Behan Dreux, and A. J. Waechter, Jr., all of New Orleans, for appellee.

OPINION

JANVIER, Judge.

Royal Insurance Company of Liverpool, England, a fire insurance company, having paid to an insured, Orleans Manufacturing Company, the loss sustained in the destruction by fire of an automobile in the repair shop of Collard Motors, Inc., obtained a subrogation and now seeks recovery from Collard Motors, Inc., alleging that the fire resulted from negligence attributable to that corporation.

Most of the facts are set forth in a stipulation entered into by counsel:

"It is stipulated by and between counsel that the Royal Insurance Company, Limited, of Liverpool, England, plaintiff, under date of January 30th, 1935, issued to the Orleans Manufacturing Company, its policy of insurance Av 2966, insuring and protecting the said Company for a period of one year from loss by fire of its 1935 Dodge Sedan, serial number 3778326, Motor No. VI28831.

"That on or about April 11th, 1935, said Orleans Manufacturing Company sent its Dodge sedan to the Collard Motors, Inc., defendant herein, for the purpose of having it serviced, due to the fact that it was hard to start.

"That while said automobile was in possession of the defendant, it was destroyed by fire on the morning of April 11th, 1935.

"That at the time the automobile was placed in the care of the defendant, that it was in good condition, extraordinarily and as the result of the fire it was damaged in the amount of $ 700.00.

"That the Royal Insurance Company of Liverpool, England, paid the Orleans Manufacturing Company the sum of $ 700.00, under the terms of the policy and that the Orleans Manufacturing Company has subrogated to the Royal Insurance Company of Liverpool England, plaintiff, all of its right and title in the claim against the Collard Motors, Incorporated, and that the subrogation attached to the petition is the one issued by the Orleans Manufacturing Company."

Defendant alleges its freedom from liability and, pointing to the well-established doctrine that a bailee without fault cannot be held liable for damage to nor destruction of property which forms the subject of the bailment, relies upon the fact that plaintiff is unable to show that the fire originated from a cause chargeable to the negligence of defendant, or of its employee.

There is, unquestionably, a well-recognized rule that, in the usual case of loss by fire of articles in the possession of a bailee, the bailee, in order to avoid liability, need only point to the fire itself and that, then, the burden shifts to the bailor to show that the bailee was nevertheless not without fault either in connection with the origin of the fire, or in failing to take proper steps to extinguish it. This rule results from the principle that a bailee is not an insurer, need only afford to the articles intrusted to him "the same diligence in preserving the deposit that he uses in preserving his own property," Civ. Code, art. 2937, and, therefore, may avoid liability by showing freedom from fault, which he may do by showing destruction by fire. It is contended, and those cases which support this view hold, that when he shows that a fire occurred, he raises a presumption of freedom from fault and shifts the burden to the bailor to show that there was, nevertheless, negligence on his part. Counsel for defendant states that the duty of the bailee is met when he "proves that the failure to return the property is due to destruction by fire," and he says further that "in such cases the burden of showing wherein the bailee was negligent and breached a duty shifts to the shoulders of the bailor." He relies upon certain cases involving destruction by fire. In McCullom v. Porter, 17 La.Ann. 89, the Supreme Court said: "The accident by overpowering force being clearly proven, it was incumbent on plaintiff to sustain his demand, to show that the loss had been caused by the fault or neglect of the defendants." In Scott v. Sample, 148 La. 627, 87 So. 478, 480, the same rule appears, stated as follows: "It is true (3)5C that, where a bailee fails to return property intrusted to his care, he bears the burden primarily of showing why he has failed to do so. But, when he has shown that the cause was due to destruction of the bailed goods by fire, the burden again shifts to the shoulders of the bailor to show that the fire (3)5C was caused by the bailee's negligence." While it is true that in Scott v. Sample the decision was not necessarily based on the rule now under discussion, still it is clear that the court approved the doctrine contended for by defendant as applied to general conflagrations. More recently, in Austin v. Heath, 168 La. 605, 122 So. 865, the court said: "As the defendant, as bailee of the cotton, has shown that the cotton was destroyed by an overwhelming force, the burden of proof is on plaintiff to show that the fire originated or was permitted to spread through some fault or negligence on the part of defendant."

But running through those decisions, there is in each a clear intimation that the cause of the fire and its general nature gave prima facie evidence of absence of fault on the part of the bailee, and in none of them do we find facts such as we notice here where there was no general conflagration. Here the fire originated entirely within the bailee's premises; it was limited in its scope confined entirely not only to the interior of the premises solely within the control of the bailee, but, in fact, to the sole and single object which formed the subject of the bailment. It would indeed do violence to the reasons on which is established the general rule contended for by defendant to extend that rule to such facts. To do so would give to...