Cho v. Royal Oldsmobile Co., Inc.

722 So. 2d 1138, 98 La.App. 5 Cir. 527, 1998 La. App. LEXIS 3419, 1998 WL 812898
CourtLouisiana Court of Appeal
DecidedNovember 25, 1998
Docket98-CA-527
StatusPublished
Cited by9 cases

This text of 722 So. 2d 1138 (Cho v. Royal Oldsmobile Co., Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cho v. Royal Oldsmobile Co., Inc., 722 So. 2d 1138, 98 La.App. 5 Cir. 527, 1998 La. App. LEXIS 3419, 1998 WL 812898 (La. Ct. App. 1998).

Opinion

722 So.2d 1138 (1998)

Peter L. CHO
v.
ROYAL OLDSMOBILE CO., INC.

No. 98-CA-527

Court of Appeal of Louisiana, Fifth Circuit.

November 25, 1998.

*1139 A. Bowdre Banks, Jr., New Orleans, for Plain tiff-Appellee.

W. Chad Stelly, Scott W. McQuaig, Metairie, for Defendant-Appellant.

Panel composed of Judges EDWARD A. DUFRESNE, Jr., SOL GOTHARD and MARION F. EDWARDS.

DUFRESNE, Judge.

In June of 1996, the plaintiff, Peter Cho, brought his vehicle, a 1994 Mazda Navajo, to Royal Oldsmobile in Jefferson Parish for repairs. While undergoing repairs in the service area, plaintiff's vehicle, which contained large pieces of musical equipment as well as other miscellaneous items, was stolen by an unknown third party. The plaintiff's vehicle was later recovered; however, the musical equipment and other items were not. In connection with his loss, plaintiff filed suit against Royal Oldsmobile, seeking to recover damages for lost property, including an electronic keyboard, speakers, amplifiers, and associated hardware, as well as compact discs, *1140 a cellular phone, a radar detector, weight lifting equipment, and a compact disc player. The plaintiff also sought to recover the expenses associated with the rental of the replacement musical equipment, as well as damages for mental anguish, inconvenience and worry. The matter proceeded to a judge trial on January 21,1998, at the conclusion of which judgment was rendered in favor of plaintiff. The judge specifically found that the defendant, Royal Oldsmobile, was a depositary under LSA-C.C. art. 2937, that plaintiff's property was lost while it was deposited with defendant, that defendant did not exercise due care in preserving the property, and that the disclaimer contained in the work repair order was ineffective to limit the liability for the loss that occurred. The judge thereafter awarded plaintiff damages in the amount of $13,398.50 for the value of plaintiff's lost property, his rental expense, and the mental anguish and inconvenience that he suffered. It is from this judgment that Royal Oldsmobile now appeals.

In the first assigned error, defendant claims that the trial court committed manifest error when it found Royal Oldsmobile solely at fault for the theft of plaintiff's property from its premises by a third person, where the dealership took reasonable measures to protect the vehicle, and the plaintiff failed to remove items of personal property from the vehicle after executing a disclaimer/waiver agreement.

An automobile repairer is a compensated depositary. Kirshner v. Johnson, 521 So.2d 697 (La.App. 1 Cir.1988). According to LSA-C.C. art. 2937, "the depositary is bound to use the same diligence in preserving the deposit that he uses in preserving his own property." However, the depositary must act only as a prudent administrator. A depositary is not an insurer of the deposit and is not required to guard against every conceivable unlawful act that may be committed against the deposit. Kirshner v. Johnson, supra. A depositary's responsibility may include personal items left in the vehicle, either in the depositary expressly or impliedly consents to accept the responsibility. Consent may be implied from actual or constructive knowledge of the presence of such items in the vehicle. Willis v. Louisiana Downs, Inc., 499 So.2d 155 (La.App. 2 Cir. 1986). The responsibility of a depositary is to be rigorously enforced when he is compensated. LSA-C.C. art. 2938.

In a suit against a depositary, the depositor initially has the burden of proving the existence of the contract of deposit and that the thing deposited was not returned or was damaged. Kirshner v. Johnson, supra. Once the owner satisfies this burden, there is a presumption that the depositary has not fulfilled his obligation as a prudent administrator and the loss resulted from the depositary's lack of care. The depositary then has the burden of exonerating himself from fault. Northern Assur. Co. of America v. Cotton, 27,100 (La.App. 2 Cir. 6/21/95), 658 So.2d 246; Alpha Alpha, Inc. v. Southland Aviation, 96-928 (La.App. 3 Cir. 7/9/97), 697 So.2d 1364.

At trial, Peter Cho testified that at about 7:30 a.m. on June 28, 1996, he left his 1994 Mazda Navajo at Royal Oldsmobile for repairs and was notified later that afternoon that his car had been stolen. During his testimony, he admitted that he left his professional musical equipment as well as some miscellaneous items inside the vehicle. He claimed that the equipment was in the cargo space and was clearly visible from the side window. In the course of his testimony, he admitted signing a document,[1] but claimed that the service advisor did not tell him that Royal Oldsmobile would not be responsible for any articles left in the vehicle, nor did the service advisor tell him not to leave his vehicle if he had items in it. He testified that if Royal Oldsmobile had advised him that they would not be responsible for those items, he would not have left his vehicle but would have returned home and rescheduled the appointment.

*1141 Mr. Don Schmitz, a service technician at Royal Oldsmobile assigned to work on plaintiff's Navajo, also testified at trial. Mr. Schmitz testified that as he was getting ready to test drive the vehicle to check on a knocking noise, he was called to the service aisle by the service manager. Mr. Schmitz left the vehicle with the keys in the ignition in the third stall from the North Hullen side of the building. When he came back approximately three to five minutes later, he discovered that the car was gone. Regarding the property inside the vehicle, Mr. Schmitz testified that he noticed some boxes in the back, but was not aware of the contents. During his testimony, Mr. Schmitz also testified about the layout of the service department. According to Mr. Schmitz, the main entrance is on Veterans Boulevard, but there are also entrances and exits on the North Hullen and Severn sides of the buildings, with the North Hullen exit apparently leading right into the street. He also testified that a guard is generally by the Severn side for the back lot, but there is no guard at the North Hullen side. Mr. Schmitz testified that there are about twenty employees in the service department, and that the service technicians wear uniforms. With respect to unauthorized persons in the service area, it is their policy to ask them to leave. According to Mr. Schmitz, plaintiff's vehicle was treated no differently than any other vehicle in the dealership would have been treated.

In addition to the above testimony, Ms. Norma DeCorte, an executive secretary at Royal Oldsmobile, testified regarding her investigation of this incident. During the course of her testimony, it was discovered that approximately nine months prior to Mr. Cho's loss, another car was stolen from the service area through the North Hullen exit. Ms. DeCorte testified that following that first theft, a chain had been installed by the "door area," but that "as the mechanics use it to go in and out, they take the chain off."

In the present case, it is uncontested that Mr. Cho deposited his vehicle with the Royal Oldsmobile dealership and that the automobile, along with its contents, were not returned to Mr. Cho because they were stolen by an unknown third party. Based on the evidence reviewed, we believe, as apparently did the trial judge, that since the location of the items in the vehicle were in plain view, the contract of deposit also extended to the items stolen. As Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
722 So. 2d 1138, 98 La.App. 5 Cir. 527, 1998 La. App. LEXIS 3419, 1998 WL 812898, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cho-v-royal-oldsmobile-co-inc-lactapp-1998.