§23.16 Property Damage

The Case: Merritt v. Nationwide Warehouse Co., Ltd . 605 S.W.2d 250, 252 (Tenn. Ct. App. 1980).

The Basic Facts: Plaintiff brought action against owner of a storage facility after Plaintiff's personal property disappeared from the storage space rented by Plaintiff from Defendant. "Plaintiff locked the leased premises. Defendant was furnished no key. Plaintiff placed various items in the leased premises, but never informed defendant as to the nature or quantity of articles stored therein. Plaintiff was free to store or remove whatever he wished without consultation with, permission from, or notice to defendant." 605 S.W.at 252.

The Bottom Line:

• "A bailment is a delivery of personalty for a particular purpose or on mere deposit, on a contract expressed or implied, that after the purpose has been fulfilled, it shall be re-delivered to the person who delivered it or otherwise dealt with according to his direction or kept until he reclaims it. Rhodes v. Pioneer Parking Lot, Inc, [501 S.W.2d 569]; Dispeker v. New Southern Hotel Co., [373 S.W.2d 904 (Tenn. 1963)]; Breeding v. Elliott Bros., [118 S.W.2d 219 (Tenn. 1938)]; 8 C.J.S. Bailments § 1, p. 312." Id. at 253.
• "Actual or constructive delivery of the property to the bailee is required for a bailment, except a constructive bailment, that, the property must be taken into the bailee's possession. Id. at § 15, p. 360." Id.
• "A bailment is ordinarily created by delivery and acceptance and consent or agreement of the parties, but it may also result from actions and conduct of people concerning the goods in question. Campbell v. State, [450 S.W.2d 795 (Tenn. Crim. App. 1969)]." Id.
• "In the absence of express contract, the creation of a bailment requires that possession and control pass from bailor to bailee; there must be full transfer, actual or constructive, so as to exclude the property from possession of the owner and all other persons and give the bailee sole custody and control for the time being. Rhodes v. Pioneer Parking Lot, Inc., supra." Id.
• "Such full delivery must be made as will entitle the bailee to exclude the possession of all other persons and put him n sole custody and control. For constructive delivery, transfer of possession must be intended. [8 C.J.S. Bailments § 15, p. 363]." Id.
• "Plaintiff cites Scruggs v. Dennis, [440 S.W.2d 20], wherein it was held that a bailment was created by placing an automobile in a parking garage and receiving a receipt from a machine. In that case, the bailee was in the business of storing automobiles, and there was an actual, visible, ascertainable delivery of specific property (an automobile) under an implied contract to re-deliver upon presentation of the receipt." Id.
• "Plaintiff argues that the direct access of Scruggs to his car and plaintiff's direct access to his leased room are equivalent. Not so. Scruggs had access to his car, but could not remove it without surrendering his receipt. Plaintiff had access to his room and could change its contents at will without any condition, for no receipts were issued and none were required to be surrendered upon removal of property." Id.
• "Plaintiff also relies upon Jackson v. Metropolitan Government of Nashville and Davidson County, [483 S.W.2d 92] wherein no receipt was issued. However, in that case, there was a personal encounter between the bailor and the bailee in which the bailee specifically assumed responsibility for a specific article (an automobile). In the present case, there is no showing of any express acceptance of possession of any particular item or items by defendant. Indeed, defendant was not at any time informed of what was being stored on the leased premises, hence, there could not have been a knowing acceptance of custody as in Jackson." Id. at 254.
• "On the contrary, decisions are uniform that the relationship between a bank and a holder of a safety deposit box is that of bailor and bailee. See 133 A.L.R. 279. This rule is understandable and distinguishable from the present case by the well-known practice of using a two-key lock on safety deposit boxes, one key being kept by the bank and one being retained by the depositor. Under this arrangement, the bank retains control of access, even against the depositor, so that no one, not even the depositor, can gain entrance without the permission and assistance of the bank." Id. at 255.
• "In the present case, the plaintiff having the only key to the leased space and having an absolute right to enter defendant's premises, defendant had no right or power to deny plaintiff access to his space. Under the circumstances of this case, any lessee of any space on defendant's premises had a right to come on the premises, and the only restraint to prevent a fellow lessee from wrongfully entering plaintiff's space was a lock to which only plaintiff had a key." Id.

Recent Cases: Simmons v. City of Murfreesboro , No. M2008-00868-COA-R3-CV, 2009 WL 4723369 (Tenn. Ct. App. Dec. 9, 2008) (upholding trial court's award of damages for injury to real property); Carson v. Waste Connections of Tennessee, Inc., No. W2006-02019-COA-R3-CV, 2008 WL 1891452 (Tenn. Ct. App. Apr. 30, 2008) (upholding property damage award as within the range of the evidence of the cost of repair).

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