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SWAN v. UNITED GMC TRUCK (04/13/60)

April 13, 1960

SWAN
v.
UNITED GMC TRUCK, INC. ET AL., APPELLANTS.



Appeals, Nos. 54, 55, 57 and 58, Feb. T., 1960, from judgments of Court of Common Please of Luzerne County, Oct. T., 1958, No. 365, in case of Ralph F. Swan et al. v. United GMC Truck, Inc. et al. Judgments reversed; reargument refused June 3, 1960.

COUNSEL

Gifford Cappellini, with him Thomas C. Moore, for appellants.

Robert L. Fleming, for appellees.

Before Rhodes, P.j., Wright, Woodside, Ervin, Watkins, and Montgomery, JJ. (gunther, J., absent).

Author: Wright

[ 192 Pa. Super. Page 177]

OPINION BY WRIGHT, J.

We are here concerned with a joint action in assumpsit arising out of two bailments. The corporate defendant, United GMC Truck, Inc., operates a motor vehicle repair shop in Luzerne County. The individual defendant, Samuel Ruggere, is president of the corporation and manager of its place of business. On March 17, 1958, plaintiffs, Ralph F. Swan and William F. Purcell, placed in the shop for minor repairs a Dodge tractor and a Ford truck. The complaint avers that the next day each plaintiff "went to defendants' said repair shop to obtain" his respective motor vehicle and found that it "had been extensively damaged by fire". At the conclusion of the testimony of the two plaintiffs, defendants' motion for a compulsory non-suit was denied. Ruggere and three other witnesses thereupon testified for the defendants. The trial judge then refused defendants' point for charge, and directed the jury to return verdicts for the plaintiffs in amounts, respectively, of $1,580.00 and $1,065.00.*fn1 The court en banc subsequently overruled defendants' motions for judgment n.o.v. and for a new trial, and directed the entry of judgments upon the verdicts. These appeals followed.

[ 192 Pa. Super. Page 178]

The legal principles which govern cases of this character were restated by Mr. Justice (now Chief Justice) JONES in Moss v. Bailey Sales and Service, Inc., 385 Pa. 547, 123 A.2d 425. These controlling principles have been in no way affected by our decision in Huck-Gerhardt Co. v. Kendall, 189 Pa. Superior Ct. 126, 149 A.2d 169, relied upon by the court below. See also Aquadro v. Crandall-McKenzie, 182 Pa. Superior Ct. 435, 128 A.2d 147. When the bailor proves the bailment, demand, and failure to redeliver, he makes out a prima facie case. If the bailee would escape responsibility for the loss, it then becomes his duty to show that his failure to redeliver the bailed article was because of its loss by fire, theft or other casualty free from fault on his own part. If the bailee's evidence does not disclose a lack of due care, the bailor must then go forward with evidence to prove that the loss of the bailed article was due to negligence on the part of the bailee. If it should so happen, however, that the bailor's case in chief establishes that the bailed article was damaged or destroyed by a general fire in the bailee's premises, the bailor must also establish in his case in chief that the bailee was negligent.

The application of the foregoing principles to the situation revealed by the instant record clearly requires a reversal of the judgments below. In the first place, it was developed in the bailors' case that the motor vehicles were damaged in a fire which was general in character, and the bailors did not attempt to show negligence on the part of the bailees. In the second place, the bailees established by their evidence that a general fire had occurred without fault on their part. The bailors offered no rebuttal.

At the trial, counsel for the bailors read into evidence the allegations of the complaint admitted by the bailees, including the allegation that the bailed motor vehicles had been extensively damaged by fire. These

[ 192 Pa. Super. Page 179]

    allegations must be considered as direct evidence in chief showing the manner in which the goods were lost. As to the general character of the fire, appellee Swan testified that the building which remained was a "shell, the walls were there, but not the roof or anything". At this juncture, since the bailors had adduced no evidence of negligence, the trial judge might well have granted bailees' motion for a compulsory non-suit. ...


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