62 A.2d 806 | N.J. | 1949
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *241 This is an appeal from a judgment entered by the former Supreme Court upon the verdict of a jury in favor of the plaintiff and against the defendant. The gravamen of the complaint was the failure of the defendant, a warehouseman, to meet the obligation arising out of the contract of bailment, resulting in damage to bags of cocoa beans stored by the plaintiff. The defendant denied negligence and further affirmatively pleaded the damage to have been caused by an Act of God and the case was tried with a jury which rendered a verdict for plaintiff in the amount of $4577.25, upon which the Court allowed interest in the amount of $1000.77, making the total amount of the judgment $5578.02 plus costs.
The defendant has urged as its chief point in support of its appeal the refusal of the trial court to direct a verdict in its behalf.
The liability of defendant as a warehouseman is defined in the Uniform Warehouse Receipts Act, R.S. 57:1-24, as follows:
"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 the exercise of such care." *242
When goods are delivered to a bailee in good condition and are returned in a damaged state the law presumes negligence and casts upon the bailee the burden of going forward with the evidence to show that the loss did not occur through his negligence or if he cannot affirmatively do this, that 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 primafacie case against the bailee to put him upon his defense. NewJersey Manufacturers Association Fire Insurance Company v.Galowitz,
From the testimony it appeared that defendant was engaged in the business of a warehouseman, receiving and storing goods for hire. On July 8, 1943, the plaintiff stored with the defendant some 1200 bags of cocoa beans receiving therefor a warehouseman's receipt which provided "The responsibility of a warehouseman, in the absence of written provisions, is the reasonable care and diligence required by law." The bags were stored on the ground floor of a warehouse belonging to the defendant, located in the City of Newark. The testimony was conflicting as to whether or not dunnage was employed in this storage; it being testified that dunnage is a method of placing the goods on a temporary wooden flooring some 5 inches above the cement floor of the warehouse so as to allow a full circulation of air and prevent mildew.
The goods continued in the custody of the defendant until May 5, 1944, on which date 400 bags were withdrawn by plaintiff. A storm of hurricane type occurred in September, 1944, not only in Newark but throughout the entire state, being the same storm that formed the basis of the defense in DeCicco v. Marlou HoldingCo.,
In order to be relieved from liability by an Act of God a defendant charged with negligence must show that the vis major relied upon was of unusual severity and that the damage resulted from that cause alone. DeCicco v. Marlou Holding Co., supra.
The defendant alleges that the testimony showed the damage to have been solely caused by the hurricane and thus not due to actionable negligence on its part. Granting that the proofs did show that the storm was of such severity as to constitute an Act of God, the plaintiff contends that there was presented sufficient conflicting testimony of the defendant's failure to exercise reasonable care in regard to the goods as to warrant submission of the case to the jury.
In the instant case we think that the conflicting testimony, for example, as to the existence of dunnage and the time of commencement of the storm in relation to the testimony that no steps were taken to anticipate damage and protect the goods which were stored on the ground floor of the building from insurging water until the second day of the storm, despite warning of its severity and imminence, the fact that some damage was caused, not by water, but by oil not related to the storm, presented questions of fact to be determined by a jury. It is well established that a case should be submitted to a jury unless there are no disputed facts or disputed inferences to be drawn from undisputed facts. Here there were both disputed facts and disputed inferences from undisputed facts and the Court correctly submitted the case to a jury.
It is further urged that error was committed in the allowance of interest. The trial court upon deliberation allowed *244
interest to be added to the sum found by the jury in its verdict.Zemel v. Commercial Warehouse Co.,
The remaining point relates to the exclusion by the trial court of testimony intended to show that the sewer in question had not overflowed prior to the time in question. We think the trial judge was correct in his rulings. Temperance Hall Asso. v.Giles,
The judgment of the former Supreme Court is affirmed. *245 For affirmance: Chief Justice VANDERBILT and Justices CASE, HEHER, BURLING, and ACKERSON — 5.
For reversal: Justice OLIPHANT — 1.