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Clark v. National Movers Co.

Decided: January 5, 1959.

PATRICK J. CLARK, JR., PLAINTIFF-RESPONDENT,
v.
NATIONAL MOVERS CO., INC., DEFENDANT-APPELLANT



Conford, Freund and Haneman. The opinion of the court was delivered by Conford, J.A.D.

Conford

This is an action by the bailor of household goods stored in defendant's public warehouse for damages resulting from loss of the goods when the entire warehouse building was destroyed by fire on December 4, 1956. A jury in the Law Division of the Superior Court, Hudson County, awarded the plaintiff a verdict of $2,000, the maximum stipulated in the agreement between the parties.

The pretrial order inferentially bases plaintiff's theory

of recovery on defendant's negligence in carrying out its agreement of bailment with plaintiff. An amendment to the order added the theory of res ipsa loquitur , but both at the trial and on appeal plaintiff relied on certain specific assignments of negligence discussed hereinafter.

The warehouse building, situated on Route S-3 in Rutherford, was newly built in November 1954. It was described at the trial by George Andre, defendant's manager of operations, as a "fireproof warehouse." It was apparently a one-story structure, built of concrete, cinder block and steel. The interior consisted of 20,000 square feet, divided by three "fireproof" walls of cinder block in each of which was installed a "safety fire door." These were automatically closed at all times when not in use. The plans for the building had been approved by the local fire prevention official, who was also building inspector. Andre, testifying as an expert, said the building had been erected after and upon the basis of a study of recently built fireproof warehouses specializing in the storage of household goods.

There were 25 manually operated fire extinguishers and 20 pails of sand throughout the warehouse, and "no smoking" signs were posted. All the main electrical switches were "pulled" after the building was closed for the day. Although the premises were locked and fenced, the warehouse was unattended at night, and until the maintenance man arrived in the morning, usually at 6:00 A.M. There was no automatic fire alarm system nor automatic sprinklers. The nearest public fire hydrant was 330 feet away from the building. The local fire department operates on a volunteer basis.

In the part of the warehouse devoted to storage of household goods the "pallet storage" system was used. This, described by Andre as the latest method, involves the packing of whole collections of such articles in large wooden, sealed containers. This procedure requires the use in the packing room of quantities of lumber, wrapping paper and excelsior, the last concededly a readily inflammable substance. The packing room was, however, cleaned out each afternoon.

When the maintenance man came to work on December 4, 1956, shortly before 6:00 A.M., and opened the warehouse door, he was confronted with a "lot of smoke" of which there was no evidence before he opened the door. He closed the door and telephoned the fire department from a motel some 300 feet away. Although the firemen and auxiliary equipment from two other towns fought the blaze, the fire continued all day and night, and erupted again the next day. The destruction of the building was complete, even the steel roof girders buckling and the roof and walls collapsing. The cause of the fire was never discovered.

Defendant's first point of appeal is the admission into evidence, over objection, on the cross-examination of defendant's witness, Andre, of testimony concerning fire-prevention features of the new warehouse building which defendant erected to replace the burned-out structure. Andre was allowed to say that the new building had an automatic sprinkler system, a water hydrant in the building and an automatic fire alarm in conjunction with the American District Telegraph System. Plaintiff quite ingenuously defends this line of examination as showing the "simple absolute safety steps" which were "taken in rebuilding of exact duplicate of prior warehouse, with only the added items which were so basic." In other words, the incorporation of the safety features in the new building is assigned as evidence of negligence in the construction of the original structure. The proof was clearly inadmissible and its reception for the purpose indicated prejudicial error. 2 Wigmore on Evidence (3 rd ed. 1940), ยง 283, p. 151 et seq.; and see Perry v. Levy , 87 N.J.L. 670, 672 (E. & A. 1915); Millman v. United States Mortgage and Title Guaranty Co. , 121 N.J.L. 28 (Sup. Ct. 1938); Pirozzi v. Acme Holding Company , 5 N.J. 178, 189 (1950). While this line of cross-examination might possibly have been defended as bearing upon the weight to be accorded to the opinion of the witness as a purported expert, this was not the proffered justification for it, and the jury undoubtedly accepted it as evidence of negligence in the construction and maintenance

of the building, and, therefore, in the safekeeping of ...


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