Appeal, No. 261, Oct. T., 1954, from judgment of Municipal Court of Philadelphia County, Jan. T., 1948, No. 294, in case of Waldo A. Atkins v. Racquet Garage Corporation. Judgment affirmed.
Horace Michener Schell, Philadelphia, for appellant.
Philip Richman, with him Richman & Richman, Philadelphia, for appellee.
Before Rhodes, P. J., Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.
[ 177 Pa. Super. Page 95]
Waldo A. Atkins brought suit in assumpsit against Racquet Garage Corporation to recover damages for the destruction of his motor vehicle by fire while it was in storage. Following a verdict for plaintiff, defendant filed motions for judgment n.o.v. and for a new trial, which were dismissed by the court en banc. This appeal followed.
Appellee was the owner of a Buick convertible coupe. On June 28, 1947, he and his wife used the car for a pleasure drive in the suburbs of Philadelphia. About midnight, or shortly thereafter, appellee drove into appellant's two-story enclosed garage for the purpose of storing the car. The testimony shows that no one other than appellant's employes had access to the garage. Appellee and his wife got out of the car
[ 177 Pa. Super. Page 96]
as soon as it had been driven into the garage entrance, received a claim check,*fn1 and departed. When appellee called for the car on the following day, the attendant told him there had been "a little accident with the car", and took him up to the second floor where appellee found that the vehicle had been badly damaged by fire. From the evidence it appears that the fire was largely confined to the interior, but that everything inflammable therein was destroyed. At the close of appellee's case, appellant's motion for a compulsory non-suit was refused.
On behalf of appellant, the attendant on duty when the vehicle was brought to the garage testified that, upon preparing to drive it upstairs, he "smelled something burning... something like rubber was burning". He immediately reported this to the night manager who inspected the car and found that the wheels were "pretty hot", from which the attendant reasoned that "the man was driving with the brakes up". The vehicle was left standing on the first floor for fifteen or twenty minutes "to see if there was any smoke", and then taken to the second floor and parked. Thereafter, the attendant was on the second floor several times and "still smelled the odor", but "still didn't see smoke or anything", although he lifted the hood and examined the engine. The attendant stated that as late as 2:30 a.m. "the car was still smelling", and he spoke to the manager about it before going off duty. The manager testified that, about 3:00 a.m. he saw a reflection of fire and when he got to the second floor the Buick convertible was aflame. He called the fire
[ 177 Pa. Super. Page 97]
department and tried himself to extinguish the fire "but it was too far gone". No other cars were damaged by the fire. The trial judge refused to affirm appellant's points for charge,* ...