Trans-System Service, Inc. v. Keener

Marbury, J., delivered the opinion of the Court. In April 1964, the appellee, William Keener, owner of a 1960 Reo tractor, delivered the vehicle to the appellant, Trans-System Service, Inc., for the purpose of having certain repairs made. After the repairs, a dispute arose over the amount of the repair bill and Keener removed the vehicle from Trans-System’s premises without paying the bill or getting consent to move it. On July 1, 1964, the appellant replevied the tractor in furtherance of its garageman’s lien and retained possession of it up to the time of the trial of the case on February 10, 1967.

While in the possession of Trans-System the tractor was seriously damaged by fire. The present case was begun by the appellant as an action for replevin which was instituted on June 25, 1964, and later amended to include a count in assumpsit for the amount of the repair charges. The appellee counterclaimed for damages to the tractor caused by the fire. On the issues of the right to replevin and the cost of the repairs Judge Menchine directed verdicts for Trans-System and the issue of the liability of Trans-System for the fire damages caused to the tractor was submitted ³⁷² to the jury, which found its verdict in favor of the appellee and assessed damages in the amount of $2200.

From the judgment rendered on the verdict as to the counterclaim this appeal was taken. Keener did not appeal from the judgments entered against him on the replevin and assumpsit counts. Both parties agree that a bailment for hire existed, that the bailed property was not returned, and that such failure or inability on the part of the bailee made out a prima facie case of negligence on the part of the bailee. They further agree that the burden of proof remains upon the plaintiff to show negligence on the part of the defendant and that the prima facie case established by the failure to return the bailed property simply shifts to the defendant the burden of going forward with the evidence showing that it was not negligent.

Fox Chevrolet Sales v. Middleton, 203 Md. 158 , 99 A. 2d 731 , 43 A.L.R. 2d 399 ; Schleisner Co. v. Birchett, 202 Md. 360 , 96 A. 2d 494 . They seem further to agree, correctly we think, that if it is shown by competent evidence that the defendant as bailee was not negligent in its care for the safety of the bailed property, then the effect of the prima facie case is negated and the burden of going forward with the evidence is shifted back to the plaintiff, F ox Chevrolet Sales v. Middleton, supra, who must then by affirmative evidence show that the circumstances of the injury were such that the bailee was negligent in the exercise of its duty of proper care for the bailed property. Fox Chevrolet Sales v. Middleton, supra; Hambleton v. McGee, 19 Md. 43 . The necessity of showing negligence is because of the fact that the bailee is not an insurer of the safety of the property entrusted to its care, Darby Co. v. Hoffberger, 111 Md. 84 , 73 Atl. 565 , but as a bailee for hire or mutual benefit owes only such care as persons of common prudence in