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Ditmars v. Grand Stores Inc.

Decided: March 19, 1946.

FREDERICK A. DITMARS, PLAINTIFF-APPELLEE,
v.
GRAND STORES, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT



On appeal from the Clifton District Court.

For the appellant, Watson, Hengeveld & Miller.

For the appellee, Bernard Shurkin.

Before Justices Bodine and Perskie.

Perskie

The opinion of the court was delivered by

PERSKIE, J. This case involves the bailee's liability for the breach of its undertaking as bailee locatio operis faciendi.

The pertinent facts are not in dispute. The bailor, Frederick A. Ditmars, sued the bailee, Grand Stores, Inc., a corporation of this state, to recover the value of two suits of clothing which he had delivered to it to be cleaned and pressed and which suits it failed to return to the bailor. The bailee's liability was based upon the theory that it had "unlawfully converted" the suits. At the time of the delivery, the bailee issued to the bailor a customer's receipt for the suits. This receipt discloses, among other things, an abbreviated description of the suits, the charge for the undertaking plus a "handling charge" (i. e., for handling and wrapping

the garments) and the following statement: "All goods insured against fire * * * while in our possession."

When the bailor returned for the suits, he ascertained that "they had been destroyed in a fire which had demolished [bailee's] establishment."

The state of case settled by the trial judge (R.S. 2:32-209) fully supports his factual findings that there was "no evidence of substance to show the cause of the fire and that its cause was left to speculation;" that the bailee had exercised "due" and "reasonable care" in the custody of the bailor's suits. In other words, the bailee had completely overcome the inference of negligence which, under the applicable law, arose because of its failure to return the suits to the bailor. Dolan v. Goodman Warehouse Corp., 11 N. J. Mis. R. 168; 165 A. 82. Cf. Berkowitz v. Pierce, 129 N.J.L. 299; 29 A.2d 552. See Annotation in 151 A.L.R. 716-721.

Notwithstanding these proofs and the law applicable thereto, the trial judge, who sat without a jury, denied the bailee's motion for a judgment in its favor as a matter of law. He granted the bailor's motion to amend his state of demand to conform to the proofs. Accordingly, the state of demand was amended so that the theory of the bailee's liability was changed from unlawful conversion to the theory that the bailee had breached its contractual obligation with the bailor as evidenced by the aforestated quoted statement in the receipt which it had issued. In due course, the trial judge entered a judgment of $65 in favor of the bailor and against the bailee. Hence this appeal.

The denial of the motion of the bailee and the granting of the motion of the bailor constitute, in substance, the specification of determinations with which ...


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