Zucker v. Kenworthy Bros. Inc., 411.

• Citation: 130 N.J.L. 385,33 A.2d 349
• Decision Date: 05 August 1943
• Docket Number: No. 411.,411.
• Parties: ZUCKER v. KENWORTHY BROS., Inc.
• Court: United States State Supreme Court (New Jersey)

130 N.J.L. 385

33 A.2d 349

ZUCKER

v.KENWORTHY BROS., Inc.

No. 411.

Supreme Court of New Jersey.

Aug. 5, 1943.

Action by Edward Zucker against Kenworthy Bros., Inc., to recover the value of an automobile stored in defendant's premises. Judgment for plaintiff, and defendant appeals.

Reversed.

Appeal from District Court, Second District, Essex County.

May term, 1943, before CASE, DONGES, and PORTER, JJ.

Thomas J. Holleran, of Newark, for plaintiff-respondent.

Arthur M. Karl, of Newark, for defendant-appellant.

DONGES, Justice.

Defendant appeals from a judgment for plaintiff in the District Court of the Second Judicial District of the County of Essex, in a suit to recover the value of an automobile stored in defendant's premises.

The state of demand alleges:

‘* * * plaintiff at the request of the defendant, stored for a consideration his automobile at the aforesaid place of storage, renting a garage at 336 Kearny avenue in the town of Kearny, County of Hudson, New Jersey. That it was agreed by the defendant that said defendant maintain and keep harmless and safe the said automobile of the plaintiff and of the things contained therein. Further, the defendant agreed with the plaintiff and it was his duty so due.

‘4. The defendant in such a manner violated his said duty as aforesaid that the automobile of the plaintiff caught fire while stored in the place of storage or garage as aforesaid and was completely demolished together with several valuable things contained therein.’

At the trial it was testified by plaintiff's daughter as follows:

‘Q. Go ahead. Tell us what the conversation between you-or the agreement between you and Mr. Kenworthy-for your father, with Mr. Kenworthy, was. A. I asked about putting the car in the garage because I had no place to put it and didn't want to leave it in the street and not have it protected; and he said I could leave it there and he would have it protected.

‘Q. Did he say anything about that? Did he elaborate on that? Did he say anything about fire and theft? A. Yes.

‘Q. What did he say? A. I don't remember his exact words, but protection for fire and theft, and exerything else. After all, that's why you put a car in the garage, for protection.’

The testimony left no room for doubt that defendant did not operate a public garage. It was in the moving and hauling business and stored its vehicles in this garage. It rendered no service of any kind to any vehicles stored there, except its own. It only rented space to plaintiff and other owners of automobiles. Each was furnished with a key to the building and they came and went as they chose, without any control by defendant over themselves or their vehicles.

It is not argued that this building was a public garage and subject to the law governing such structures.

It was argued in the court below, and the trial judge found, that the relation of bailor and bailee existed and that the defendant was under the legal duty, upon proof of loss of the automobile, to show that it was not guilty of negligence resulting in the damage complained of. Upon the question of negligence the only proof was that a fire occurred, which damaged plaintiff's automobile. The cause was unknown. There was no proof as to its cause.

Under the...