Jimmy Murphy v. Triple T's Automotive Repair

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-249

JIMMY MURPHY

VERSUS

TRIPLE T’S AUTOMOTIVE REPAIR, ET AL.

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APPEAL FROM THE
LAKE CHARLES CITY COURT
PARISH OF CALCASIEU, DOCKET NO. 12-119
HONORABLE JOHN S. HOOD, CITY COURT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Elizabeth A. Pickett,
and Shannon J. Gremillion, Judges.

AFFIRMED.

Michael R. Garber
Attorney at Law
1801 Ryan St.
Lake Charles, LA 70601
(337) 494-5500
COUNSEL FOR DEFENDANTS/APPELLANTS:
Triple T’s Automotive Repair
Tony Freeman

Paul P. Marks
Stockwell, Sievert, Viccellio, Clements & Shaddock
P. O. Box 2900
Lake Charles, LA 70602
(337) 436-9491
COUNSEL FOR PLAINTIFF/APPELLEE:
Jimmy Murphy

PICKETT, Judge.

Automotive repair shop appeals judgment awarding plaintiff the value of his

truck that was damaged by fire while on its premises. For the following reasons,

the trial court’s judgment is affirmed.

FACTS

In August 2008, Jimmy Murphy brought his 2004 Ford F-250 diesel truck to

Triple T’s Automotive Repair (Triple T’s) shop, which is owned and operated by

Tony Freeman, to have it repaired. Triple T’s ordered and installed a part, but the

truck did not run properly. Additional diagnostic testing indicated that another part

needed to be replaced. Before the second part could be obtained and replaced, the

truck was vandalized and burned.

Mr. Murphy sued Triple T’s and Mr. Freeman (hereinafter referred to

collectively as Triple T’s) to recover damages resulting from the loss of his truck.

Triple T’s admitted that Mr. Murphy’s truck was parked outside its business and

that it was trying to repair the truck when the truck was set on fire but denied

liability for Mr. Murphy’s damages. Triple T’s also reconvened against

Mr. Murphy to recover for the repairs it had performed on his truck prior to the

fire. After a trial on the merits, the trial judge rendered judgment in favor of

Mr. Murphy, awarding him $14,550.00, together with interest and costs, and

denied Triple T’s reconventional demand at its cost.

DISCUSSION

An appellate court may reverse the findings of the trial court only when a

reasonable factual basis does not exist for the finding and the finding is clearly

wrong or manifestly in error. Stobart v. State, 617 So.2d 880 (La.1993). The task

of the reviewing court is solely to ask whether this fact finder’s resolution of the

conflicting evidence was reasonable in light of the record as a whole. Henderson

v. Nissan Motor Corp. U.S.A., 03-606 (La. 2/6/04), 869 So.2d 62.

Deposit

“A deposit is a contract by which a person, the depositor, delivers a movable

thing to another person, the depositary, for safekeeping under the obligation of

returning it to the depositor upon demand.” La.Civ.Code art. 2926. A contract of

deposit is either gratuitous or onerous. La.Civ.Code art. 2928.

Louisiana Civil Code Article 2930 provides:

When the deposit is onerous, the depositary is bound to fulfill
his obligations with diligence and prudence.

When the deposit is gratuitous, the depositary is bound to fulfill
his obligations with the same diligence and prudence in caring for the
thing deposited that he uses for his own property.

Whether the deposit is gratuitous or onerous, the depositary is
liable for the loss that the depositor sustains as a result of the
depositary's failure to perform such obligations.

Accordingly, an onerous depositary “owes a duty to exercise reasonable care and

to take precautions against reasonably foreseeable danger to deposited property,”

but he is not an insurer of the deposit. Broussard v. Paul Fournet Air Serv., Inc.,

574 So.2d 541, 542 (La.App. 3 Cir.), writ denied, 578 So.2d 934 (La.1991). See

also, Coe Oil Serv., Inc. v. Hair, 283 So.2d 734 (La.1973). The delivery of a car to

a repairman constitutes a compensated deposit. Alexander v. Qwik Change Car

Ctr., Inc., 352 So.2d 188 (La.1977); Kirshner v. Johnson, 521 So.2d 697 (La.App.

1 Cir. 1988). Thus, Triple T’s was a compensated depositary.

The depositor has the burden of proving the contract of deposit and that the

thing was damaged or was not returned. Upon proof of those facts, a presumption

is raised that the loss resulted from lack of due care on the depositary’s part. Alpha

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Alpha, Inc. v. Southland Aviation, 96-928 (La.App. 3 Cir. 7/9/97), 697 So.2d 1364.

The burden then shifts to the depositary to exonerate himself. National Auto. Ins.

Co. v. Champ’s New Orleans Collision Ctr., LLC, 06-1144 (La.App. 4 Cir.

2/28/07), 954 So.2d 197. A depositary, however, is not an insurer of the property.

Id.; La. Civ.Code art. 2930.

Triple T’s argues that its duty was to use reasonable care as it would with

regard to its own property. It asserts that because Mr. Freeman stored his own

truck and racing trailer on the premises outside the building, it proved that it used

reasonable care with regard to Mr. Murphy’s truck.

A similar situation existed in Coe, 283 So.2d 734, where an airplane that had

been parked on the premises of a private flying service was vandalized and

damaged. In Coe, the supreme court determined the deposit to be onerous. The

defendant cited a fence, lights, and security guard on its premises as being

adequate precautions for the safekeeping of the airplane and as showing it afforded

due care for the airplane. The supreme court concluded, however, that the

defendant’s failure to produce “direct evidence to prove that the cause of the loss

was other than its failure as depositary to safeguard the property” was insufficient

to satisfy its burden as a compensated or onerous depositary to prove that the

plaintiff’s “loss did not result from its fault.” Coe, 283 So.2d 738. See also, Alpha

Alpha, Inc., 697 So.2d 1364.

Pursuant to La.Civ.Code art. 2930 and Coe, 283 So.2d 738, we conclude that

the trial judge did not err in finding Triple T’s failed to prove it was diligent and

prudent when it left Mr. Murphy’s truck parked in front of its business, rather than

secured inside its building or enclosed in the fence behind its building.

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Notice of Risk

Triple T’s also contends that signs posted on its premises relieved it of

liability. The signs read:

NOT
RESPONSIBLE FOR THEFT
OR DAMAGE
TO VEHICLES

Mr. Murphy testified that he parked his vehicle at front of Triple T’s

building and never saw the signs. Pictures of the signs show they were posted on a

fence gate that was located on the side of the building toward or at the back of the

building. The trial judge determined:

The signs[,] and there are two signs that I see along the gate
which would lead a reasonable person to believe that if your vehicle is
behind that gate, . . . you’re put on notice by the owner that they
accept no responsibility for damage or theft or anything to the extent
of the signs. Because they’re on the gate going behind a locked gate, I
don’t think that extends to the front of the building.

Nothing in the record shows this finding is unreasonable. Accordingly, we find no

error with it.

Triple T’s cites Palmetto Fire Insurance Co. v. Clark Garage Co., 6 La.App.

420 (Orleans 1927) and Zesiger v. Dean, 247 So.2d 222 (La.App. 4 Cir. 1971), as

support for its position. These cases predate a shift in the jurisprudence that

apparently began with Coe and was followed with the 2003 enactment of

La.Civ.Code art. 2930. The defendant in Coe provided more security for the

plaintiff’s plane than Triple T’s did here, yet the supreme court concluded that the

defendant did not satisfy his obligation as a depositary. Finding Coe dispositive of

Mr. Murphy’s claim against Triple T’s, we find no error with the trial judge’s

determination that Triple T’s is liable for the damage to Mr. Murphy’s truck.

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Reconventional Demand

Triple T’s contends that the trial judge erred in denying its claim for

reconventional demand because it performed the initial repair on the truck.

Mr. Freeman acknowledged, however, that Mr. Murphy never received the benefit

of the repairs when he testified: “I thought I told him the first part was done” and

Mr. Murphy’s truck “would only run for a few minutes.”

Mr. Freeman’s testimony corroborated Mr. Murphy’s testimony that he was

never told that he could pick up his truck and also established that the truck was

not completely repaired before it was damaged. For these reasons, we find no

error with the trial judge’s denial of the reconventional claim.

DISPOSITION

The judgment of the trial judge is affirmed. All costs are assessed to Triple

T’s Automotive Repair and Tony Freeman.

AFFIRMED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION.
RULE 2—16.3, UNIFORM RULES—COURTS OF APPEAL.

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