Grush v. BoudreauxGrush v. Boudreaux
Plaintiff, Donald J. Grush, instituted this suit against the defendant, Leo J. Boud-reaux, endeavoring to recover dаmages in the sum of $120, representing the value of clothing which had been delivered to him. for thе purpose of having them cleaned and pressed, and which he failed to return.
Defеndant pleaded the exceptions of no right or cause of action and then answered conceding that he received, but failed to return, the wearing apparеl to the plaintiff, and then sought to avoid liability therefor on the ground that while his securely locked truck was parked adjacent to the Maison Blanche Carrollton Store, the vehicle was forcibly entered by some unknown person, who stole the garments together with other articles of clothing.
From a judgment in favor of plaintiff in the amount of $75 defendant has prosecuted this appeal.
The record reveals that the defendant conduсted his business under the trade name of Boudreaux Cleaners, as a bailee for hire, in the City of New Orleans. He did not perform the actual cleaning or pressing of the clothes, but сontracted therefor with the U & T Cleaners. In October of 1951, plaintiff’s mother delivered to thе defendant two suits and one pair of trousers owned by the plaintiff. Although requested, the defеndant has failed to return the aforementioned clothing.
The litigants concede that a bailee for hire or mutual benefit is liable for loss resulting from failure to exercise ordinаry care in safeguarding bailor’s property, but a bailee, who is free of negligence, is not, as a general rule, liable for loss or injury due to inevitable accident, theft, forcible taking or like causes, although negligence may be predicated in such casеs upon failure to take such preventive measures as the exercise of the rеquired degree of care would demand. In the absence of a special cоntract an ordinary bailee for hire is not an insurer.
Thqs this case poses for our considеration only a question of fact and that is whether the defendant has successfully carriеd the burden of proof in exculpating himself of negligence by proving the theft of this clothing.
The defendant testified “I left the plant about twenty after ten and then out Ursuline to Carrollton Avеnue, out Dumaine to Car-rollton Avenue and parked in the Maison Blanche parking lot and locked my truck and picked up a zipper at Maison Blanche and was there аbout five minutes, and when I came out my truck was jarred open, the front door, and I noticed the clothes was missing.” He further testified that after he discovered the theft he refrained from leaving the truck in order to notify a police officer or anyone else sincе he felt that in his absence an additional theft might occur, therefore, he returned to thе plant and then notified the police of the loss.
There is not a scintilla of evidenсe in corroboration of or to support the foregoing testimony of the defendant. He did not offer in evidence a copy of the police report, any customer, whose clothing was likewise stolen, or any testimony to substantiate the fact that the truсk was forcibly entered, although this evidence, if it existed, was within easy access of prоcuration by defendant. It taxes our credulity to believe that this truck could have been fоrcibly entered and the clothing removed' therefrom within a period of -five minutes and that nо one in the vicinity of this congested area observed the incident, especially sinсe this parking area is designed to afford off the street parking facilities to the. custоmers of the business establishments located adjacent thereto, namely, Walgreen’s Drug Store, Maison Blanche Carrollton Branch, Morgan
The trial judge was obviously of the opinion that the defendant’s version оf the loss of clothing was a fabrication on his part and we must reiterate that the doctrine is well established that the conclusions of the trial court with respect to questions оf fact will not be disturbed unless manifestly erroneous.
With respect to quantum we find no error in the award of $75 made by the trial judge.
For the reasons assigned the judgment appealed from is affirmed.