Schuette v. Larson

BARNARD, P. J. This is an action for damages arising from a collision between a truck and trailer owned by the plaintiff Schuette and an automobile owned and operated by the defendant. The complaint sets up two causes of action. In the first, the plaintiff Schuette seeks to recover for the damage to his truck and trailer and in the second, the plaintiff Woolley seeks to recover for the destruction of the load of merchandise which was being transported on the truck and trailer. The defendant filed a cross-complaint. After trial by the court without a jury, a judgment was entered awarding the plaintiff Schuette $2145 and the plaintiff Woolley $1328.59, and denying relief to the cross-complainant.

[297]While the defendant has appealed from the entire judgment the award of damages in favor of Schuette is in no way attacked, the briefs and argument being directed entirely to that part of the judgment which is in favor of Woolley.

The only point raised is that a bailee of personal property who is not in actual possession thereof cannot maintain a cause of action in his own name against a tort-feasor for damage to said property. In support of this contention it is stated in appellant's brief that no part of the cargo in question was owned by Woolley, but that the merchandise belonged to various third parties and had been shipped by Woolley acting merely as a forwarder. On the other hand, the respondents’ brief states that this merchandise was owned by and had been shipped by Woolley.

There is no evidence in the record supporting appellant’s contention that this merchandise was owned by third parties. The only evidence having any bearing on this situation is the testimony of the driver of the truck and trailer, who testified that Schuette was engaged in the business of transporting merchandise by truck and that “Woolley shipped the cargo that was on this truck”. Woolley was in possession of these goods when they were delivered to Schuette and to ship them would be to exercise an act of ownership over them. Under such circumstances, and in the absence of any evidence to indicate a contrary situation, there is a presumption that Woolley was the owner of the goods. (Code Civ. Proc., sec. 1963, subds. 11 and 12.) The court found that Woolley delivered these goods to Schuette, for transportation on behalf of Woolley; that the goods were burned and destroyed as a result of the appellant’s negligence; and that Woolley was thereby damaged in the sum of $1328.59. The evidence, with the reasonable inferences that may be drawn therefrom, together with thé existing presumptions, support the findings and judgment.