Notes:

63 Wn.2d 463, CHESTER CHALOUPKA, Respondent, v. PAUL CYR, Appellant

[No. 36627. Department Two. Supreme Court December 19, 1963.]

CHESTER CHALOUPKA, Respondent, v. PAUL CYR, Appellant.<*>

[1] Bailment - Duty of Bailee - Care of Chattels. Under the ordinary bailm ent, the bailee is not an insurer, and is liable for loss or damage to a b ailed chattel only where he has failed to exercise ordinary care under t he circumstances.

[2] Same - Presumptions - Negligence. When a bailor shows that his bail ed property was not returned or was returned damaged, he has establish ed a prima facie case, or raised a presumption that will, at least, car ry him past a nonsuit; however, where it is shown by either party that t he loss was caused by fire or other cause which does not, by itself, indic ate the negligence of the bailee, the presumption of liability is rebutte d, and the burden of proving negligence remains on the bailor.

[3] Same - Evidence - Sufficiency. While a bailor need not prove a bailee 's negligence to an absolute certainty in order to recover for a bailed ch attel destroyed by fire, he must, nevertheless, establish such negligen ce by a preponderance of the evidence.

Appeal from a judgment of the Superior Court for Pierce County, No. 14900 1, Frank Hale, J., entered May 7, 1962. Reversed.

Action for damages to personal property. Defendant appeals from a judgme nt in favor of the plaintiff.

Keesling & Lambert and James J. Keesling, for appellant.

Charles W. Johnson and Brooks K. Johnson, for respondent.

DONWORTH, J. -

This is an appeal by defendant bailee from a judgment entered upon plainti ff's claim. The complaint alleged that plaintiff delivered his Oldsmobi le automobile to defendant, a body repairman, for the purpose of having se veral minor repairs made thereto, and that, while it was in defendant's po ssession, the car caught fire because of defendant's negligence, thus caus ing a total loss. The answer denied any negligence, and affirmatively alle ged that the fire was caused by "a short in the electrical

* Reported in 387 P. (2d) 740.

[2] See Ann. 9 A.L.R. 570, 71 A.L.R. 773, 151 A.L.R. 725; Am. Jur. (2d), B ailments § 315.

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system." The trial to the court sitting without a jury resulted in a judgm ent for a total of $1,037.60, including stipulated damages ($1,000) and co sts ($37.60).

There is no substantial issue of fact in this case. Respondent (bailor) de livered his automobile to appellant (bailee) to have certain minor repai rs made. While in the bailee's possession, prior to his doing any wo rk on the car, the vehicle was destroyed by fire from an unknown cause.

The findings of fact of the trial court reflect the essential facts of t he case. Of the 10 findings of fact, only No. 9 (which is really a conclus ion of law) is challenged by appellant. The following are the trial court 's findings of fact, which are important to this appeal:

"II. That on and prior to July 11, 1961 the Defendant operated an automobi le repair shop in Pierce County, Washington under the name of Frenchie's B ody and Fender Shop.

"III. That on and prior to July 11, 1961, the Plaintiff was the own er of a 1958 Oldsmobile 88 2-door sedan automobile.

"IV. That shortly prior to July 11, 1961, the Plaintiff and the Defenda nt entered into an oral agreement, whereby the Defendant engaged to perfo rm certain repairs to the Plaintiff's said automobile, and also engag ed to take the car to a specified radio repairman for the purpose of havi ng the radio in said car repaired; and that the parties agreed that the De fendant would be compensated for these services.

"V. That the Plaintiff delivered said automobile into the possession of t he Defendant at his place of business sometime during the afternoon of Ju ly 11, 1961, for the purpose of having repairs made as above stated; th at thereafter, on that day or the day following, the Defendant accepted fu ll time employment at an auto wrecking establishment near Tacoma, whi ch is located 10 or 12 miles distant from his own place of business, and w hich is located across the street from the place of business of the rad io repairman who was to repair the radio of the Plaintiff's car.

"VI. That on July 14, 1961 the Defendant drove the Plaintiff's said automo bile from his own place of business to his place of employment, arriving s hortly before 9:00 o'clock in the morning; that the Defendant parked sa id automobile on an outside parking lot on the premises where he was emplo yed; that the Defendant worked during that

Dec. 1963] CHALOUPKA v. CYR 465

entire day in an open area a short distance away, at a place in full vi ew of said automobile; that shortly before 4:30 in the afternoon of said d ay, the Defendant discovered the Plaintiff's said automobile to be on fir e; and that said fire was ultimately extinguished by the fire department.

"VII. That the Plaintiff's said automobile was in good operating conditi on at the time it was left with the Defendant; that as a result of said fi re, the automobile was almost totally destroyed, and was thereafter sold f or salvage; and that by stipulation the parties have agreed that the amou nt of the damage to said automobile resulting from the fire is $1,000.00.

"VIII. That after the fire was extinguished, the upholstery in the front s eat was found to be completely burned, and that in the back seat was subst antially burned; that there was considerable fire damage to and under t he dash on the inside; that the outside paint was severely damaged from t he lower glass line up, and from the cowl to the rear of the car, but w as not damaged forward of the cowl or on the hood; that all of the glass w as broken or damaged beyond repair; and that there was no damage to the mo tor or the front end.

"IX. That the fire started somewhere in the passenger compartment; that ne ither party has established the cause of the fire; and that the Defenda nt has failed to establish that the fire did not result from his negligenc e."

The trial court also entered the following conclusion of law:

"III. That the liability of the Defendant results from the presumpti on of negligence arising from his failure to deliver the automobile ba ck to the Plaintiff in good condition, and his failure to show by eviden ce that the damage to said automobile did not result from his negligence.

The legal issue to be decided on this appeal arises from finding of fact N o. 9 (which is really a conclusion of law) and from conclusion of law N o. 3. This issue can be briefly stated: who has the burden of proving negl igence of the bailee when only the delivery of possession to the bailee a nd subsequent damage to the property are shown.

[1] Ordinarily the rule is that a bailee is only liable for loss or dama ge to a bailed chattel where he has failed to exercise ordinary care und er the circumstances; the

466 CHALOUPKA v. CYR [63 Wn. (2d)

bailee is not an insurer. Jones v. Warner, 57 Wn. (2d) 647, 359 P. (2d) 1 60 (1961); Ramsden v. Grimshaw, 23 Wn. (2d) 864, 162 P. (2d) 901 (1945); B urley v. Hurley-Mason Co., 111 Wash. 415, 191 Pac. 630 (1920); St. Paul Fi re & Marine Ins. Co. v. Chas. H. Lilly Co., 48 Wn. (2d) 528, 295 P. (2d) 2 99 (1956).

In the Jones case, the rule is stated as follows:

"A bailee is not an insurer of property placed in his charge, but is on ly required to exercise ordinary care. Carley v. Allen, 31 Wn. (2d) 730, 1 98 P. (2d) 827. But where property not perishable in nature is deliver ed to a bailee in good condition, and is not returned or is returned damag ed, a presumption arises of negligence on the part of the bailee and cas ts upon him the burden of showing the exercise of ordinary care. Burl ey v. Hurley-Mason Co., 111 Wash. 415, 191 Pac. 630. However, the presumpt ion does not arise unless it appears that the subject of the bailme nt is of such a nature that loss or injury could not ordinarily have occur red without negligence on the part of the bailee. Patterson v. Wenatchee C anning Co., 53 Wash. 155, 101 Pac. 721."

[2] The rule followed in numerous decisions in this state on the questi on of burden of proof in bailment cases where property is lost or damag ed while in the bailee's possession, is that a prima facie case, or presum ption, is raised when the bailor shows nonreturn, loss, damage or destruct ion to bailed property. Althoff v. System Garages, Inc., 59 Wn. (2d) 86 0, 371 P. (2d) 48 (1962); Jones v. Warner, supra; Ramsden v. Grimshaw, sup ra; Goodwin v. Georgian Hotel Co., 197 Wash. 173, 84 P. (2d) 681, 119 A.L. R. 788 (1938); Burley v. Hurley-Mason Co., supra; Russell v. Union Mac h. & Supply Co., 88 Wash. 532, 153 Pac. 341 (1915); Parker v. Washington T ug & Barge Co., 85 Wash. 575, 148 Pac. 896 (1915); Kingsley v. Standard Lb r. Co., 84 Wash. 189, 146 Pac. 369 (1915); Colburn v. Washington State A rt Ass'n, 80 Wash. 662, 141 Pac. 1153 (1914); Patterson v. Wenatchee Canni ng Co., 53 Wash. 155, 101 Pac. 721 (1909); Pregent v. Mills, 51 Wash. 18 7, 98 Pac. 328 (1908).

Dec. 1963] CHALOUPKA v. CYR 467

However, if the bailee can show that he has exercised due care or can sh ow the loss was caused by burglary, larceny, fire, or other causes whi ch of themselves do not point to negligence on the part of the baile e, he can rebut the presumption. Jones v. Warner, supra; Dohrmann Hotel Su pply Co. v. Owl Transfer & Storage Co., 19 Wn. (2d) 522, 143 P. (2d) 44 1, 149 A.L.R. 1108 (1943); Goodwin v. Georgian Hotel Co., supra; Birk v. B remerton, 137 Wash. 119, 241 Pac. 678 (1925); McDonald v. Wm. D. Perkins & Co., 133 Wash. 622, 234 Pac. 456, 40 A.L.R. 859 (1925); Harland v. Pe E ll State Bank, 122 Wash. 289, 210 Pac. 681 (1922); Firestone Tire & Rubb er Co. v. Pacific Transfer Co., 120 Wash. 665, 208 Pac. 55, 26 A.L.R. 2 17 (1922); Colburn v. Washington State Art Ass'n, supra; Patterson v. Wena tchee Canning Co., supra. By rebutting the presumption, the burden is on t he bailor to show that negligence of the bailee resulted in the loss or da mage to the bailed property.

One bailment case states that presumption is sufficient only to get the pl aintiff past a nonsuit. Murphy v. Schwark, 117 Wash. 461, 201 Pac. 757 (19 21). This is the usual result reached when dealing with presumptions.

The weight of authority (8 Am. Jur. (2d), Bailments § 315) appears to be t hat where the bailor shows that the failure of the bailee to return the su bject of the bailment in its original condition was because it was damag ed or destroyed by fire while in the bailee's possession, the burden of pr oving negligence remains on the bailor.

In Birk v. Bremerton, 137 Wash. 119, 241 Pac. 678 (1925) the plaintiff's g oods were stored in the city's warehouse when they were destroyed by fi re of unknown origin. In holding that the city was not liable, this cou rt said, at page 121:

"The law with reference to the liability of warehousemen is well settle d. A warehouseman is bound to exercise ordinary diligence only. Colbu rn v. Washington State Art Ass'n, 80 Wash. 662, 141 Pac. 1153, L.R.A. 191 5A 594. When, however, it is shown that the loss is occasioned by larcen y, burglary, fire, or other cause which of themselves do not

468 CHALOUPKA v. CYR [63 Wn. (2d)

point to negligence on the part of the bailee, the bailee has then met t he prima facie case made against him by his failure to return the goods, a nd the burden of proof as to negligence then rests upon the plainti ff as in any other case of alleged negligence. Colburn v. Washington Sta te Art Ass'n, supra; Firestone Tire & Rubber Co. v. Pacific Trans. Co., 1 20 Wash. 665, 208 Pac. 55, 26 A.L.R. 217; Harland v. Pe Ell State Bank, 1 22 Wash. 289, 210 Pac. 681; McDonald v. Perkins & Co., 133 Wash. 622, 2 34 Pac. 456.

"In the last cited case, we said that appellant in that instance did not s how the loss to fall within any of the exceptions as to the liability of t he bailee upon failure to return the goods, of fire, theft, leakage, or a ct of God. In this case, appellant brought itself within the recognized ex ceptions as to liability of a bailee for storage, and comes within the ru le stated in the foregoing cases.

In the present case, respondent produced as a witness a captain of Pier ce County Fire District No. 2, who was called to the parking lot and arriv ed while the car was still smoldering. He examined the car thoroughly aft er the fire was extinguished and testified to its condition. He was examin ed by respondent's counsel and stated, in part, as follows:

"Q. Does your Fire Department make any investigation of these thin gs as to the possible cause of the fires? A. No, we do at times, but bei ng rather short handed we are limited. Q. Do you know if any investigati on was made as to the cause of this particular fire? A. No, I don't. Not t hat I know of. Q. Is there anything in your official report that would ind icate the cause of the fire? A. No. Q. Did you make any tests as to the wi ring system or the electrical system of any kind? A. No."

Thus respondent, in his case in chief, showed that appellant's failu re to return the car in its original condition was due to this fire. Conse quently, he had the burden of proving that the fire was caused by appellan t's negligence, which he failed to do.

As to why he failed to redeliver the car to respondent in the same conditi on as when he received, appellant made the following explanation:

That the car was delivered to him at his shop (which was located on his ho me property) on or about July 11,

Dec. 1963] CHALOUPKA v. CYR 469

1961. The parties agreed that, for $20, appellant was to fix a dent in t he dash and one in the bumper, and to drive the car to Mr. Brown's radio r epair shop. As appellant was not a radio repairman, the radio was to be re moved and repaired by Mr. Brown, who does radio repair work only in his sp are time (evenings and week ends).

About that time, appellant accepted temporary full-time employment with Un ited Auto Wrecker, whose place of business was across the street from M r. Brown's place of business.

July 14, 1961, appellant drove the car to the place of business of Unit ed Auto Wrecker when he went to work there about 9 a.m. and parked it in t he parking lot. He did not smoke any cigarettes while he was in the ca r. He worked outdoors where the car was in his range of vision all day. Be tween 4 and 4:30 p.m., the fire in the car occurred.

Appellant's testimony regarding it is as follows:

"Q. What first attracted your attention to the car? A. I was working and t hen all of a sudden I heard a horn blowing, so I looked around and I didn 't see anyone, so I kept on working and the horn kept on blowing; then a ll of a sudden I looked at the car and I see the windows were all blac k. I ran to the car and opened the door to see what was going on, and the re was an explosion, it must have knocked me about close to ten feet aw ay from the car. Q. Then what did you do? A. It burned the side of my fac e. Q. Then what did you do? A. Then I ran towards United Auto and told M r. Medley that I had a fire in the back and I needed some men to come o ut there and put it out. I picked up some water and ran back towards the c ar and Mr. Medley himself called the Fire Department. Q. Did Mr. Medley co me out? A. No, he had to look after the office. Q. The Fire Department h ad to put the fire out? A. Definitely, yes. Q. You describe it as almo st an explosion when you opened the door? A. As soon as I opened the do or that is when it blew up. Q. Did you look at the car later? A. I beg yo ur pardon? Q. Did you inspect the car after - ? A. After the fire was o ut I looked at it, yes. Q. Do you have any knowledge of where the fire sta rted? A. According to my knowledge, I would say that the fire started und er the dash somewhere. Q. You don't know where it started?

470 CHALOUPKA v. CYR [63 Wn. (2d)

A. No. Q. Was all of the upholstery burned in the back seat? A. No, mo st of the fire was in front, the dash was all burned down, the windshie ld was all crinkled to sand. In the back seat there was still upholste ry in it. I would say that the fire was in the front part of the car. Q. A fter the fire did you report to Mr. Chaloupka? A. I did. It was the fir st thing I did."

On cross examination, appellant described his attempts to put the fire o ut until the firemen arrived, which was "almost instantly."

Mr. Medley, the owner of United Auto Wrecker, who was present in his offi ce at the time of the fire and had purchased the damaged car body from t he insurance company, was called as the only witness for appellant. His te stimony is substantially the same as appellant's. He further testifi ed as follows:

"Q. Mr. Medley, you are in the business of dismantling wrecked cars, is th at right? A. Yes, sir; for twelve years. Q. You have seen cars burned befo re? A. I have seen cars after they were burned. Q. Did you inspect this c ar at my request? A. Yes, sir; about two days ago. Q. Were you able to asc ertain where the fire may have started? A. Well, my judgment is that it st arted in the forward part behind the firewall and in front of the front se at. Q. Do you have an opinion as to how the fire started? A. No sir."

In his cross examination he described in detail the condition of the car a fter the fire. In the course of his testimony, he stated:

"A. Well, the complete front end that would be from the cowl forward was n ot damaged, we sold that. The back from the window, the rearmost window ba ck to the end of the deck was not burned up, but the middle of the car fr om the cowl to the back of the back glass was gutted almost completely exc ept for the very back of the back seat where there was some tufts of uphol stery material. Q. In other words, the damage was about in the area of t he car where the front seat is, is that correct? A. It would be more conce ntrated under or near the dash or the cowling. Q. Do you remember the cond ition of the motor when you bought the car back? A. When we bought the ca r? Q. Yes. A. There was no mechanical damage, that is in reference to t he block or the cast iron parts, but there was some

Dec. 1963] CHALOUPKA v. CYR 471

damage as I recall to the electrical parts which would include the wirin g, etc. Q. The motor itself? A. The motor itself was all right. Q. In fa ct that is the reason you bought it back and paid that much? A. We boug ht the car for the front sheet metal and for the engine, the rest w as of no value."

Thus this case comes within an exception to the general presumption, th at is, the presumption of liability is rebutted when the loss is sho wn to have been caused by fire. The result is that the trial court's judgm ent must be reversed.

[3] Here the damage was not of a kind that ordinarily does not occur witho ut negligence. In Grange v. Finlay, 58 Wn. (2d) 528, 364 P. (2d) 234 (196 1) (which did not involve a bailment), we discussed the question of the qu antum of proof of negligence necessary to establish liability in connecti on with a fire. At page 531, this court said:

"Negligence cannot be assumed merely because the evidence shows that a fi re occurred or an accident happened. Cambro v. Snook, 43 Wn. (2d) 609, 2 62 P. (2d) 767. As we said in that case, it must be established by eviden ce or by legitimate inference from the established facts.

"Here the proof of the cause of the fire necessarily rested upon circumsta ntial evidence. In regard to such evidence, this court has said:

"'The rule is well established that the existence of a fact or facts cann ot rest in guess, speculation, or conjecture. It is also the rule that t he one having the affirmative of an issue does not have to make pro of to an absolute certainty. It is sufficient if his evidence affords ro om for men of reasonable minds to conclude that there is a greater probabi lity that the thing in question, such as the occurrence of a fire, happen ed in such a way as to fix liability upon the person charged therewith th an it is that it happened in a way for which a person charged would n ot be liable. In applying the circumstantial evidence submitted to pro ve a fact, the trier of fact must recognize the distinction between that w hich is mere conjecture and what is a reasonable inference.' Home Ins. C o. of New York v. Northern Pac. R. Co., 18 Wn. (2d) 798, 140 P. (2d) 50 7, 147 A.L.R. 849, quoted with approval in Cambro v. Snook, supra.

"A corollary of this rule is that, if there is nothing more substanti al to proceed upon than two or more conjectural theories, under one or mo re of which a defendant would

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be liable, and under one or more of which there would be no liability up on him, a jury will not be permitted to conjecture how the accident occurr ed. Gardner v. Seymour, 27 Wn. (2d) 802, 180 P. (2d) 564."

Appellant fully disclosed all information within his knowledge as to the o rigin of the fire. We have set forth the salient parts of the evidence pro duced by him. In our opinion, he explained the cause of the damage to t he full extent that was reasonably possible under the circumstances. The t rial court held that this was not enough and that appellant had the burd en of proving a negative, to wit, that the fire was not caused by his negl igence.

We hold that under the circumstance of this case the burden, at the clo se of all the evidence, was upon respondent to establish, by a preponderan ce of the evidence, that the fire was caused by appellant's negligence. Th ere must be some evidence produced by the bailor from which negligence c an be found. Of course, the bailor need not prove negligence to an absolu te certainty. The trial court found, or concluded, that neither party h ad established the cause of the fire. It granted respondent judgment for t he reason that appellant had failed to establish, by a preponderance of t he evidence, that the fire did not result from his own negligence. In o ur opinion, the trial court erred in so holding.

Accordingly, the judgment is reversed with instructions to dismiss the act ion.

OTT, C. J., FINLEY, WEAVER, and HAMILTON, JJ., concur.

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