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Kovner v. Banfield

Decided: October 4, 1990.

JOYCE KOVNER, PLAINTIFF-RESPONDENT,
v.
EDWIN BANFIELD, T/A BANFIELD MOVING AND STORAGE CO., INC., DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.

Petrella, Muir and Brochin. The opinion of the court was delivered by Brochin, J.A.D.

Brochin

Defendant Edwin Banfield, trading as Banfield Moving and Storage, is in the residential moving business. Plaintiff Joyce Kovner hired him to move her household belongings from her old residence to her new one. She claims that during the move defendant lost an essential part of a ceiling-to-floor lamp, broke a piece off of a bedroom dresser, and chipped a sculpture. Appearing pro se, she sued him in Small Claims Division of Special Civil Part, claiming $450 damages. After a bench trial, the court entered judgment in plaintiff's favor for $250.

Defendant has appealed. He makes the following arguments:

1. The lower court erred by entering judgment in favor of the plaintiff because the burden of proving damages lies with the plaintiff since all terms of the bill of lading are accepted as stated.

2. The lower court erred by entering judgment in favor of the plaintiff because the judge committed a plain error by conducting the trial in an atmosphere giving the appearance that he assumed the role of advocate for plaintiff.

Plaintiff has taken no part in the appeal except to write us a letter in which she argues that "to allow this appeal would be subverting the whole small claims procedure which allows an

individual claimant who has been injured to make a claim without the cost of engaging an attorney and also get a speedy resolution of the claim."

In support of his first argument on appeal, defendant asserts that plaintiff has the burden of proving her mover's negligence and that she failed to sustain that burden because "[b]y signing the Bill of Lading, the Plaintiff released the Defendant from any liability, other than the damages listed, thereby asserting that her property was in good condition upon delivery."

We disagree. The language of the bill of lading to which defendant refers is apparently the statement, printed above plaintiff's signature, which says, "[s]ervices shown herein were rendered and shipment was received in good condition except as noted." The bill of lading has the handwritten notations, "[p]iece of a dresser off[;] chip in sculpture;" and "dresser has 2 pieces that came off[;] chip came off sculpture". The bill of lading does not mention damage to the lamp, but Mr. Banfield testified, "[i]t was somewhere between the residences and the truck that piece [of the lamp] fell off. How? I cannot say how it fell off, but it was missing." In the light of this evidence, the trial court could properly determine that the printed notation on the bill of lading was not conclusive proof that "shipment was received in good condition. . . ."

As a public mover, defendant is subject to N.J.S.A. 45:14D-1 and following, the "Public Movers and Warehousemen Licensing Act." Among the regulations promulgated pursuant to that Act is N.J.A.C. 13:44D-4.10. Without stating expressly the forum to which it applies, that regulation declares that "[t]he public mover or warehouseman shall be liable for physical loss, destruction or damage to any articles of the shipper during transit or storage" unless the mover or warehouseman proves "to the satisfaction of the Board. . . ." that he is entitled to one of the grounds of ...


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