Odle v. Dunbar

SCHOTTKY, J.

Plaintiff commenced an action against defendant to recover for damages to plaintiff’s airplane when it was blown upside down at defendant’s airport, the com-plaintiff alleging that defendant had failed to use ordinary care in the storage of the plane. Defendant denied the material allegations of the complaint and also set up an affirmative defense that the relationship of depositary for hire had terminated prior to the time the plane was damaged. The action was tried by the court, sitting without a jury, and the court found “that after December 31, 1949, plaintiff’s aeroplane was left at the defendant’s hangar at the instance and request of the defendant’s agent and for defendant’s benefit; that the bailment was not in fact a gratuitous one; that the defendant was obliged, at the time of the damage to said aeroplane, to exercise ordinary care in its preservation; that defendant did not exercise ordinary care but was guilty of negligence in removing said aeroplane from the hangar where it had been stored and negligently placing it outside and tied down in such a manner that the wind tipped it upside down and damaged the aeroplane.” Judgment in the sum of $1,500 was entered in favor of plaintiff and this appeal is from said judgment.

Appellant states that “The sole question raised by this appeal is whether the evidence supports the finding that appellant was bailee for hire on January 13, 1950, the date of the damage to respondent’s plane?” Appellant does not raise the question of negligence and concedes that the appellant was a bailee for hire until January 7, 1950. However, it is appellant’s position that upon this latter date he ceased to be a bailee for hire by reason of having terminated the bailment upon notice as authorized by Civil Code, section 1854.

The record shows that commencing in January, 1947, respondent rented from appellant, the owner of the Roseville Airport, storage space for respondent’s airplane in appellant’s hangar on a month to month oral agreement for the sum of $15 per month. This arrangement continued without in

[468]

terruption until December, 1949, at which time John Parris, appellant’s agent, advised respondent that the airport would be closed on January 1, 1950. On December 29, 1949, when respondent went to the hangar to remove his plane, Parris requested him to leave his plane in appellant’s hanger to help in the prospective sale of the airport, and told him that the closing of the airport would be postponed indefinitely, at least seven days. At this time respondent inquired about payment of the rent for the month of January and was told by Parris to wait as it was then undetermined to whom payment should be made. After January 1, 1950, no rent was paid by respondent nor was any charged by appellant. Respondent testified that prior to this time he had made arrangements for storage of his plane elsewhere and would not have left his plane at appellant’s airport had it not been for Parris’ request. On December 30, 1949, an article concerning the closing of the local airport appeared in the Rose-ville Press Tribune, wherein it was stated that: