198 P. 240 | Or. | 1921
The plaintiff alleges that the court erred in allowing the introduction of evidence as to the existence of a local custom among the garage-keepers of the City of Portland. There was no allegation of any particular custom contained in the pleadings. At the trial a number of garage-keepers were permitted to testify that a custom existed among the keepers of garages at Portland to the effect that the storage of an automobile did not contemplate or include the duty of removing water from the radiator.
It is a familiar rule of pleading that the issues in each case are confined to those made by the pleadings, and in the trial the evidence adduced should be limited to support the issues thus made.
Defendant, by his answer, gave notice to the plaintiff that his defense was based upon a specific contract. On the trial the defense was founded not upon the contract pleaded, but upon local custom. Defendant undertook to excuse the full measure of responsibility that the law of bailment places upon him by showing local custom among the garage-keepers of Portland. The plaintiff objected, upon the ground that the custom was not pleaded. The weight of authority supports the general rule that evidence of a particular custom or usage such as was sought to be established by defendant, in any special line of business, is not admissible unless such custom or usage is specially pleaded. Some cases recognize exceptions to the general rule, but it is not necessary to refer to them here.
“In tke absence of evidence tkat tke party to be charged had actual knowledge of a trade custom or usage, it must, in order to be admissible against him, appear to have been so general tkat he will be presumed to have knowledge of it. * * As will be seen, knowledge of a usage is necessary in every case, in order to bind a person by its terms. Sometimes this knowledge must be expressly proved, and sometimes, from its generality and notoriety, tke law raises tke presumption tkat tke usage was known.” 17 C. J. 454, 455.
“A custom of garage-keepers contrary to the implied obligation of reasonable care for safekeeping arising in favor of an automobile owner by the storing of his car at a public garage cannot absolve the garage-keeper from observance of such care.” McLain v. West Virginia Automobile Co., 72 W. Va. 738 (79 S. E. 731, Ann. Cas. 1915D, 956, 48 L. R. A. (N. S.) 561).
“A bhilee for hire cannot by contract so limit his responsibility to the bailor as not to be liable for his own negligence or the negligence of his servants.” Pilson v. Tip-Top Auto Co., 67 Or. 528 (136 Pac. 642).
“A garage-keeper storing a ear of another for compensation is classed as a bailee for hire, and as such he is bound to furnish reasonably safe accommodations and to exercise reasonable care and prudence to keep the machine in a safe manner. If guilty of negligence resulting in injury to the machine, he may be charged with the damage. The liability of a garage-keeper for hire is not affected by reason of the knowledge of the owner as to the place where the property is kept. Its acceptance by the garageman imposes on him the duty of exercising due care for its safety and protection.” Huddy on Automobiles (5 ed.), §202; Berry on Automobiles (2d ed.), § 742; Stevens v. Stewart-Warner Speedometer Corp., 223 Mass. 44 (111 N. E. 771).
*494 “The garage-keeper is not an insurer of the automobiles left in his charge to be eared for, but he is bound to use reasonable or ordinary diligence in their care and keeping to the end that they be not damaged or destroyed or lost by reason of theft or otherwise.” Berry on Automobiles (2 ed.), § 742, and cases cited under note 9.
“Proof that a motor-car when delivered to a garage-keeper was in good order but when called for a few days later it was damaged, the water-jacket having frozen and burst, makes out a prima facie case against the bailee, the garage-keeper. * *
“It then became the duty of the garage-keeper to rebut the prima facie case, by showing that he used due care as bailee # * .” Smith v. Economical Garage, 170 Misc. Rep. 430 (176 N. Y. Supp. 479).
A case illustrative of this principle is Hansen v. Oregon-Wash. R. & N. Co., 97 Or. 190, 213 (188 Pac. 963, 191 Pac. 655).
The judgment in this case is reversed and the cause remanded for further proceedings not inconsistent with this opinion. Revebsed and Remanded.