Kelley v. Capital Motors, Inc.

The Majority Opinion of the Court was delivered by Circuit Judge Wm. FI. Grimbarr, Acting Associate Justice, with Mr. Associate Justice Stukes filing a Dissenting Opinion. The Opinion of the Court follows : This cause involves the degree of care required of a bailee for mutual benefit. The action was commenced by the service of a summons and complaint on or about the 27th day of April, 1942, asking damages against the appellant by reason of its failure to deliver to respondent a certain automobile, the property of respondent, which had been left with appellant at its garage for repairs. The record shows that the failure to deliver the automobile to respondent was due to the fact that appellant’s garage and respondent’s automobile had been destroyed by fire. The facts and circumstances surrounding the fire were as follows: *307 Appellant rented the lower floor of a two-story brick building on the corner of Gervais and Marion Streets in the City of Columbia, and there operated its business of automobile sales and repairs garage. Another party rented the second floor in the building and there operated a bowling alley. Appellant was in no way connected in business with the occupant of the second story. On February 2, 1942, respondent’s automobile was delivered to appellant for the purpose of having repairs done upon it. At 1:58 A. M., on the morning of February 13, 1942, the fire department of the City of Columbia received an alarm of fire and proceeded to this building; arriving there within two minutes after receiving the alarm. It was found that the premises on the second floor, occupied by the bowling alley, were on fire. The firemen broke into a door leading into the premises of appellant on the first floor. They found no smoke and no fire on the first floor. They also broke into a door which allowed them to go up on the second floor. There they found a “whole entire” alley just a lot of flames.” Three firemen went up together. When they opened the door, the fire flew out on them, and they were forced to turn loose and almost fall down the stairs to get out of the way of the fire. Fifteen minutes after the fire department arrived at the building there was no heat downstairs to bother them at all, and no smoke. In spite of the efforts of the firemen, the fire spread. While some of the automobiles within the premises of appellant were rescued, the removal of others was halted by the chief of the fire department for fear of the possibility of -injury from falling roof and flooring. Dr. Kelley’s, automobile was destroyed, as well as four belonging to appellant, and also two belonging to other parties. The record shows that appellant did not employ a night watchman. *308 Respondent states in his brief that there were no fire extinguishers and no sprinkler system on the premises occupied by appellant. The record appears to be silent as to fire extinguishers or sprinkler system. Nevertheless, for the purpose of this opinion, we may assume that there were none such present. The jury rendered a verdict in behalf of respondent in the sum of Fifteen Hundred ($1,500.00) Dollars. From judgment entered thereon this appeal has been brought. At the close of all of the testimony appellant made a motion for a directed verdict in its behalf on the following grounds: 1. That no reasonable inference can be drawn from the testimony except that the defendant was guilty of no negligence having a causal connection with the destruction of plaintiff’s property. 2. That no reasonable inference can be drawn from the testimony except that the defendant used in the care of the plaintiff’s property at least that degree of care which is exercised by a prudent man in the management of his own affairs. In overruling this motion the presiding judge made the following statement: “I think it is a question of fact for the jury. The matter of what care should have been taken, under the circumstances, is not controlled by the pleadings, because no specific lack of care is alleged or denied, and it'is conceivable that the jury might conclude something about the matter of care that neither counsel on either side, nor the Court, would have in mind. We don’t have a case where some specific negligence is charged, in which we could say, under the circumstances, there is no testimony on these charges to submit to the jury. Therefore .1 think it is a case that would have to be submitted to the jury under the law as you gentlemen have presented it.” *309 We do not find ourselves in complete concurrence with the statement of the presiding Judge. In the case of Albergotti v. Produce Company, 202 S. C., 357, 25 S. E. (2d), 156, 158, March 30, 1943, this court stated the rule to be as follows: “From a study of the decided cases in this State, it would appear that our Court has recognized that certain presumptions may arise in bailment cases, especially as to warehouse-men, which overlap and shadow the oft-repeated statement found in negligence cases, that the doctrine of res ipsa loquitur does not prevail in this State. In other words, in warehouse bailments, when the bailor shows that the bailee has not returned the property, the subject of the bailment, or that the property has been lost by theft or fire, or that it has been returned in a damaged condition, such bailor has made out a prima facie case, and the duty is then shifted to the bailee to show that he has used ordinary care in the storage and safe keeping of the property. From these facts, coupled with any testimony on the subject the bailor may introduce, it is for the jury to say whether the bailee has been negligent, that is, failed to use ordinary care. Of course if upon all the testimony in the case the only reasonable inference that can be drawn therefrom is that the bailee used due care, it would then be the duty of the trial Judge to direct a verdict in the bailee's favor." (Italics added.) In a consideration of the law applicable to the issues in this cause it must ever be kept in mind that a bailee for mutual benefit is not an insurer. If he were an insurer the mere proof of loss or damage would make him liable. This lawsuit would be entirely unnecessary. But this is a negligence case. And in order to warrant a verdict and judgment for the bailor two things must appear from the record. First: The record must warrant a reasonable inference of negligence upon the part of the bailee. *310 Second: The record must warrant a reasonable finding that such negligence upon the part of the bailee was a proximate, direct and immediate cause of the loss or damage. And in cases of this nature it is the duty of the bailee, in this jurisdiction, to disclose the facts and circumstances surrounding the loss and damage, and to show that he exercised the degree ’ of care imposed upon him by the law in order to avoid such loss or damage to the bailed property. On this issue the bailee has the burden of proof. The degree of care required of a bailee for mutual benefit is defined as ordinary care, or due care, or the degree of care which would be exercised by a person of ordinary care in the protection of his own property. In his Commentaries on American Law, Chancellor Kent, in his consideration of the duties and liabilities of a bailee for mutual benefit, states: “As this contract is of mutual benefit, the bailee is not answerable for slight neglect, nor for a loss by inevitable accident or irresistible force; he is only answerable for ordinary neglect.” With these principles in mind let us now consider the facts of this case as disclosed by the record, in relation to the two elements of a bailor’s right to recovery from a bailee for mutual 'benefit. These elements are, as above stated, 1st; —negligence, or absence of ordinary care, on the part of the bailee, and 2nd; — that such negligence, if any there was, contributed to the loss or damage as a proximate, direct and immediate cause thereof, without which negligence on the part of the bailee the loss or damage would not have occurred. Respondent’s automobile was lost by reason of a fire which commenced on premises over which appellant had no control, and which, in spite of the efforts of the fire department of the City of Columbia, spread to appellant’s salesroom and repair garage and destroyed not only respondent’s *311 automobile but also several automobile belonging to appellant. Does the record warrant a reasonable inference of negligence on the part of the appellant ? Respondent insists that the failure to provide a night watchman, a sprinkler system, or fire extinguishers warrant such a finding. Were this bailee held by law to the highest degree of care he would be required to exercise and employ every precaution available for the protection of the bailed property. The highest degree of care would undoubtedly include precautions such as a night watchman, a sprinkler system and fire-extinguishing apparatus. A bailee for mutual benefit, however, is not held to the highest degree of care. The law requires him to exercise what is called “ordinary care”; that degree of care which a man of ordinary prudence and care would exercise in the protection of his own property. While these precautions are admirable, and while one who employs them is to be commended for his care and caution, and while the circumstances surrounding some bailments for mutual benefit might well require their exercise and employment by a bailee, we hesitate to hold that every person who operates an automobile salesroom and repair garage must either employ a night watchman or else be held guilty of negligence; — or must either install a sprinkler system or fire-extinguishing apparatus or else be held to be negligent; — or must either have all three — -night watchman, sprinkler system and fire-extinguishing apparatus— or else be held to be negligent. It is our opinion that the record in this case does not warrant a reasonable inference of negligence on the part of appellant. On the issue of proximate cause we are of the opinion that the only reasonable inference warranted by the record is that the proximate, direct and immediate cause of the loss of respondent’s automobile was a fire which broke out and commenced on premises over which appellant had no control, *312 and which, in spite of the efforts of the fire department of the City of Columbia, spread to appellant’s salesroom and repair garage. The cause of respondent’s loss, in our opinion, comes within the inevitable accident or irresistible force mentioned by Chancellor Kent, and for which the bailee is not answerable. It necessarily follows that the trial judge was in error in refusing appellant’s motion for a directed verdict. The judgment must be reversed with directions to enter judgment for appellant. Messrs. Associate Justices Baker and Fishburne and Circuit Judge T. D. Tide, Acting Associate Justice, concur.