On appeal from the Supreme Court.
For the appellant, Kellogg & Chance.
For the respondent, William L. Greenbaum and George Gildea.
The opinion of the court was delivered by
CASE, J. This is an appeal from a judgment of nonsuit granted at the Mercer Circuit of the Supreme Court. The issue on the appeal is whether the trial judge erred (1) in granting a nonsuit and (2) in the exclusion of some and the admission of other evidence. Plaintiff is the assignee of Shifman Brothers who were the owners of four automobiles left by them with the defendant, a garagekeeper for hire. During the night of August 8th, 1923, these automobiles, with others, were destroyed by fire in the defendant's garage. The action was instituted to recover for the damage thus done.
The complaint contains four counts. One is based directly on the alleged failure of the defendant to fulfill his obligations under the specific contract between him and Shifman Brothers. The others plead in changing verbiage the failure of the defendant to perform his duty as bailee for hire.
Of the thirteen grounds of appeal the first and second have to do with the nonsuit.
The legal concept of the action comes within the general subject of bailee for hire. The automobiles were stored at a price in defendant's garage. The principle of liability is that of a warehouseman. The duty of the warehouseman as bailee under the common law was to take reasonable care of the goods trusted to his charge. Section 21 of chapter 133 of the laws of 1907 entitled "An act concerning warehouse receipts and to make uniform the law relating thereto" (4 Comp. Stat., p. 5780), provides that "a warehouseman shall be liable for any loss or injury to the goods caused by his failure to exercise such care in regard to them as a reasonably careful owner of similar goods would exercise, but he shall not be liable, in the absence of an agreement to the contrary, for any loss or injury to the goods which could not have been avoided by exercise of such care." That statute makes no change in this respect in the common law doctrine and is merely declaratory thereof. Levine v. Wolff, 78 N.J.L. 306. The rule has been stated by the courts in varying language. This court has declared the following to be a correct statement:
It is "the duty of a warehouseman to provide a reasonably fit and safe place to store goods which he has accepted, and to exercise reasonable care to see that they are safely kept." Grannan v. Fox, 100 Id. 288. Whether or not a warehouseman has bestowed upon the goods stored with him the care required by law is a question of fact. Levine v. Wolff, supra; Grannan v. Fox, supra.
It was in evidence that on the night of August 8th, some time after eleven-thirty o'clock a fire occurred in the defendant's garage, in the course of which twenty-four or twenty-eight automobiles were burned and the building was so damaged that the timbers fell and were strewn across the cars, and that, although the defendant lived immediately next door and had a night watchman in the garage building, the defendant and those with him did not get the automobiles out. An inspection made the next morning showed that there were a big bus and other cars placed in the back of the Shifman cars so that the latter could not be moved without first removing the former. The Shifman cars were brought into the garage on the evening preceding the fire in sufficiently good condition to be run in under their own power. The defendant testified that he saw two of the cars being brought in and so far as he could see there was nothing the matter with them. When chattels are delivered to a bailee in good condition and are returned in a damaged state, or not returned at all, the law will presume negligence to have been the cause and casts upon the bailee the burden of showing that the loss did not occur through his negligence or, if he cannot affirmatively do this, that at least he exercised a degree of care sufficient to rebut the presumption of it. Proof of loss or injury while in the custody of the bailee establishes a prima facie case against the bailee to put him upon his defense. Jackson v. McDonald, 70 N.J.L. 594; also, see, Dantes v. McGann, 98 Id. 55.
The motion for nonsuit as made by the defendant was upon two grounds: First, that there was no evidence which showed the alleged damage to the ...