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Voorhis v. Consolidated Rail Corporation

Court of Appeals of the State of New York
Nov 22, 1983
60 N.Y.2d 878 (N.Y. 1983)

Summary

affirming denial of directed verdict for plaintiff where he failed to establish that theft of suitcase which defendant was charged with watching was due to defendant's negligence

Summary of this case from Isik Jewelry v. Mars Media, Inc.

Opinion

Argued October 18, 1983

Decided November 22, 1983

Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, RICHARD F. KUHNEN, J.

Robert S. Stitt and Paul V. Nunes for appellant.

Cora T. Walker and Lawrence R. Bailey, Jr., for respondent.


MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

Whether the usher, Pereira, was acting within the scope of his employment in agreeing to watch plaintiff's suitcase, whether he did so agree and whether defendant through Pereira was guilty of gross negligence, were, under the testimony presented, questions of fact for the jury.

The bailment, if found by the jury, would constitute defendant only a gratuitous bailee, liable only for gross negligence. But even as to a gratuitous bailee the failure to return the object bailed establishes a prima facie case of gross negligence, requiring the bailee to come forward with an explanation ( Dalton v Hamilton Hotel Operating Co., 242 N.Y. 481, 488; Hasbrouck v New York Cent. Hudson Riv. R.R. Co., 202 N.Y. 363, 374). Defendant presented no testimony, but there was evidence concerning what happened to plaintiff's suitcase in the form of the deposition of Pereira, read by plaintiff, and the report of defendant's Police Officer Lennon, offered by defendant. In his deposition Pereira denied any knowledge of what happened to the suitcase, and Lennon's report only indicates that Pereira stated "that he had been called away during the course of watching same and when he returned said property was found missing."

From that evidence the jury could, but was not required to, infer that the suitcase had been stolen and that Pereira had been guilty of gross negligence in leaving the suitcase unattended. The burden of proof, and the burden of going forward, once a theft has been established, rests upon plaintiff bailor, however ( Castorina v Rosen, 290 N.Y. 445; Claflin v Meyer, 75 N.Y. 260; Mays, Inc. v Hertz Corp., 15 A.D.2d 105; Fidelity Guar. Ins. Corp. v Ballon, 280 App. Div. 373). It was not error, therefore, to deny plaintiff's request for a directed verdict on the issue of gross negligence.

Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur.

Order affirmed, with costs, in a memorandum.


Summaries of

Voorhis v. Consolidated Rail Corporation

Court of Appeals of the State of New York
Nov 22, 1983
60 N.Y.2d 878 (N.Y. 1983)

affirming denial of directed verdict for plaintiff where he failed to establish that theft of suitcase which defendant was charged with watching was due to defendant's negligence

Summary of this case from Isik Jewelry v. Mars Media, Inc.
Case details for

Voorhis v. Consolidated Rail Corporation

Case Details

Full title:CHARLOTTE C. VOORHIS, Appellant, v. CONSOLIDATED RAIL CORPORATION…

Court:Court of Appeals of the State of New York

Date published: Nov 22, 1983

Citations

60 N.Y.2d 878 (N.Y. 1983)
470 N.Y.S.2d 364
458 N.E.2d 823

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