Beach, J.
The defendant’s appeal raises two principal questions. First, whether the trial court erred in instructing the jury that the plaintiff’s duty in the fulfillment of his contract obligations was “to exercise that reasonable degree of care, skill and efficiency in that position that a person skilled in that business and capable of managing it would exercise under all the circumstances.”
Defendant’s counsel requested the court to charge that “it was the duty of the plaintiff in the event that the defendant was suffering a loss of gas to use every means in his power to endeavor to detect the cause for the loss of such gas.” This is equivalent to saying that the plaintiff should have used the highest- degree of care in the management of the defendant’s business. The law imposed no such duty on the plaintiff.
The court correctly charged the jury that the burden of proof was on the plaintiff to prove, by the requisite preponderance of evidence, all the material allegations of his complaint, including the allegation that he had diligently and faithfully performed the duties of his employment, and further, that “if you find that the plaintiff failed or neglected to use reasonable care and means to detect the cause or causes of the losses of said gasoline and kerosene and prevent such losses, then the defendant was under no obligation to continue to keep him in its employment, and was justified in discharging him.”
In these portions of the charge, the jury were properly instructed as to the burden of proof and the degree of care and diligence imposed by law upon the plaintiff, generally, and in respect of preventing excessive losses of gasoline and kerosene. By their verdict the jury have found that the plaintiff did sustain the burden of proof cast upon him, and did not fail or neglect to use reasonable care to prevent such losses of gasoline and kerosene as in fact occurred.
The defendant’s second principal claim is that the court erred in refusing to instruct the jury, as requested, that “if the jury find that the defendant lost some 12,000 gallons or more of gas which was under the care of the plaintiff, then it became the duty of the plaintiff to satisfactorily explain to the jury the cause for the loss of this large amount of gas.” The portion of the charge most nearly responsive to this request is as follows: “On the other hand, if you find that the
plaintiff did exercise reasonable care and diligence in respect to said materials, and the losses thereof, and was not guilty of carelessness and neglect or lack of reasonable diligence, the fact that losses existed and continued, notwithstanding, would not of itself justify the defendant in discharging him, and, if the other elements of the plaintiff’s complaint be proven by the requisite preponderance of the evidence, your verdict should be for the plaintiff.”
We think this was as far as the defendant was entitled to require the plaintiff to go in the direction of explaining satisfactorily to the jury the cause for the losses in question. Upon the whole charge the plaintiff was required to show by a preponderance of evidence that the losses did not occur through any lack of reasonable care on his part. That meets the issue of justification alleged in the answer, and there seems to be no other issue arising on the pleadings which requires
any further explanation of the cause of the loss by the plaintiff. ,
The defendant's argument in support of its claim that the court erred in refusing to charge as last requested, is based on the claim that the gasoline and kerosene in question were so completely in the possession and under the control of the plaintiff that he ought to be required to explain the deficiency as if he were a bailee. It is a sufficient answer to this argument that the plaintiff has already been required to show, and has shown, to the satisfaction of the jury that the loss was not occasioned by his negligence; and that is all that a defendant bailee is required to show when sued for loss of or damage to the goods bailed.
The rule in such cases is founded on the nature of a bailment, which involves a delivery of the thing bailed into the possession of the bailee, under a contract to return it to the owner according to the terms of the agreement. The failure of the bailee to perform his contract to return the goods raises a presumption that their nonproduction is due to the negligence of the bailee, and by proof of such nonproduction the bailor makes out a prima facie case of negligence, which may be overcome by the bailee by any explanation which shall satisfy the trier that the loss was not due to his failure to exercise reasonable care in the custody of the goods.
Brooklyn Clothing Corporation
v.
Fidelity-Phenix Fire Ins. Co.,
205 N. Y. App. Div. 743, 747, 200 N. Y. Supp. 208. The cases are collected in a note to § 160, 6 Corpus Juris, p. 1158.
We do not, however, assent to the proposition that the plaintiff was a bailee, or in a position analogous to that of a bailee, of the goods in question. The burden of proving that no excessive loss of gasoline'and kerosene occurred under his management, by reason of his negligence, was properly imposed on him because, as
plaintiff in this action for wrongful discharge from his employment as manager of the business, he was required to prove that he performed his duties as manager with reasonable care. But if the defendant corporation were suing him for damages for an alleged excessive loss of gasoline and kerosene, we are of opinion that the proof of the loss here in question would not of itself raise a presumption of negligence on the claims of fact as they appear in the finding. The plaintiff, as manager, had charge of the purchase and sale of gasoline and kerosene. The materials were stored in tanks owned by the defendant and located on its premises. These tanks were equipped with locks opened by keys and were under the control of the plaintiff at all times during his employment, except for two weeks in the month of March, 1922, when the plaintiff was absent on account of sickness. Concededly some loss by evaporation of gasoline was to be expected, and the defendant claimed that one per cent of the gasoline sold was a reasonable allowance for such loss. Making this allowance the alleged excessive loss was approximately 9,000 gallons out of a total of 406,519 gallons. Plaintiff claimed that the total loss was not excessive or unusual; but accepting the defendant’s claim, the loss is not so large as to raise a presumption that it was due to the negligence of the manager, especially as it is admitted that approximately one half of the total loss occurred in the single month of March, when the plaintiff was absent for two weeks, and that the other half of the loss was spread over a period of something over five months. There are manifest possibilities of leakage not discoverable by the exercise of reasonable care, of excessive evaporation, and of loss by careless handling and measurement by subordinate servants, which are not excluded by the finding.
Under the circumstances the rule
res ipsa loquitur
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Beach, J.
The defendant’s appeal raises two principal questions. First, whether the trial court erred in instructing the jury that the plaintiff’s duty in the fulfillment of his contract obligations was “to exercise that reasonable degree of care, skill and efficiency in that position that a person skilled in that business and capable of managing it would exercise under all the circumstances.”
Defendant’s counsel requested the court to charge that “it was the duty of the plaintiff in the event that the defendant was suffering a loss of gas to use every means in his power to endeavor to detect the cause for the loss of such gas.” This is equivalent to saying that the plaintiff should have used the highest- degree of care in the management of the defendant’s business. The law imposed no such duty on the plaintiff.
The court correctly charged the jury that the burden of proof was on the plaintiff to prove, by the requisite preponderance of evidence, all the material allegations of his complaint, including the allegation that he had diligently and faithfully performed the duties of his employment, and further, that “if you find that the plaintiff failed or neglected to use reasonable care and means to detect the cause or causes of the losses of said gasoline and kerosene and prevent such losses, then the defendant was under no obligation to continue to keep him in its employment, and was justified in discharging him.”
In these portions of the charge, the jury were properly instructed as to the burden of proof and the degree of care and diligence imposed by law upon the plaintiff, generally, and in respect of preventing excessive losses of gasoline and kerosene. By their verdict the jury have found that the plaintiff did sustain the burden of proof cast upon him, and did not fail or neglect to use reasonable care to prevent such losses of gasoline and kerosene as in fact occurred.
The defendant’s second principal claim is that the court erred in refusing to instruct the jury, as requested, that “if the jury find that the defendant lost some 12,000 gallons or more of gas which was under the care of the plaintiff, then it became the duty of the plaintiff to satisfactorily explain to the jury the cause for the loss of this large amount of gas.” The portion of the charge most nearly responsive to this request is as follows: “On the other hand, if you find that the
plaintiff did exercise reasonable care and diligence in respect to said materials, and the losses thereof, and was not guilty of carelessness and neglect or lack of reasonable diligence, the fact that losses existed and continued, notwithstanding, would not of itself justify the defendant in discharging him, and, if the other elements of the plaintiff’s complaint be proven by the requisite preponderance of the evidence, your verdict should be for the plaintiff.”
We think this was as far as the defendant was entitled to require the plaintiff to go in the direction of explaining satisfactorily to the jury the cause for the losses in question. Upon the whole charge the plaintiff was required to show by a preponderance of evidence that the losses did not occur through any lack of reasonable care on his part. That meets the issue of justification alleged in the answer, and there seems to be no other issue arising on the pleadings which requires
any further explanation of the cause of the loss by the plaintiff. ,
The defendant's argument in support of its claim that the court erred in refusing to charge as last requested, is based on the claim that the gasoline and kerosene in question were so completely in the possession and under the control of the plaintiff that he ought to be required to explain the deficiency as if he were a bailee. It is a sufficient answer to this argument that the plaintiff has already been required to show, and has shown, to the satisfaction of the jury that the loss was not occasioned by his negligence; and that is all that a defendant bailee is required to show when sued for loss of or damage to the goods bailed.
The rule in such cases is founded on the nature of a bailment, which involves a delivery of the thing bailed into the possession of the bailee, under a contract to return it to the owner according to the terms of the agreement. The failure of the bailee to perform his contract to return the goods raises a presumption that their nonproduction is due to the negligence of the bailee, and by proof of such nonproduction the bailor makes out a prima facie case of negligence, which may be overcome by the bailee by any explanation which shall satisfy the trier that the loss was not due to his failure to exercise reasonable care in the custody of the goods.
Brooklyn Clothing Corporation
v.
Fidelity-Phenix Fire Ins. Co.,
205 N. Y. App. Div. 743, 747, 200 N. Y. Supp. 208. The cases are collected in a note to § 160, 6 Corpus Juris, p. 1158.
We do not, however, assent to the proposition that the plaintiff was a bailee, or in a position analogous to that of a bailee, of the goods in question. The burden of proving that no excessive loss of gasoline'and kerosene occurred under his management, by reason of his negligence, was properly imposed on him because, as
plaintiff in this action for wrongful discharge from his employment as manager of the business, he was required to prove that he performed his duties as manager with reasonable care. But if the defendant corporation were suing him for damages for an alleged excessive loss of gasoline and kerosene, we are of opinion that the proof of the loss here in question would not of itself raise a presumption of negligence on the claims of fact as they appear in the finding. The plaintiff, as manager, had charge of the purchase and sale of gasoline and kerosene. The materials were stored in tanks owned by the defendant and located on its premises. These tanks were equipped with locks opened by keys and were under the control of the plaintiff at all times during his employment, except for two weeks in the month of March, 1922, when the plaintiff was absent on account of sickness. Concededly some loss by evaporation of gasoline was to be expected, and the defendant claimed that one per cent of the gasoline sold was a reasonable allowance for such loss. Making this allowance the alleged excessive loss was approximately 9,000 gallons out of a total of 406,519 gallons. Plaintiff claimed that the total loss was not excessive or unusual; but accepting the defendant’s claim, the loss is not so large as to raise a presumption that it was due to the negligence of the manager, especially as it is admitted that approximately one half of the total loss occurred in the single month of March, when the plaintiff was absent for two weeks, and that the other half of the loss was spread over a period of something over five months. There are manifest possibilities of leakage not discoverable by the exercise of reasonable care, of excessive evaporation, and of loss by careless handling and measurement by subordinate servants, which are not excluded by the finding.
Under the circumstances the rule
res ipsa loquitur
is plainly inapplicable; and the rule in actions against a bailee has no application because the goods in question remained in the possession of the owner, on its premises and in its tanks. The relation between the defendant and the plaintiff was that of master and servant. The delivery of the keys of the tanks to the plaintiff was. not for the purpose of making a symbolic delivery of possession of their contents, but for the purpose of giving the plaintiff such control of their contents as was necessary to enable him to manage the defendant’s business of buying and selling gasoline and kerosene. Nothing in the contract of employment, or the nature of the business, required that the defendant should be excluded from such supervisory control of the business as it might choose to exercise; and it nowhere appears in the finding that it was in fact excluded except of its own volition.
We have not found any case in which the rule in actions against a bailee has been applied in an action against a servant placed in charge of the master’s goods upon the master’s premises. The possession of a bailee ordinarily excludes the owner from taking care of the goods bailed, and from opportunity to know what care is exercised by the bailee; when that is not the fact, it is held that the rule requiring the bailee to disprove negligence does not apply. 6 Corpus Juris, p. 1158, § 160;
Bertig
v.
Norman,
101 Ark. 75, 141 S. W. 201;
Wall
v.
Gillin Printing Co.,
21 Misc. 649, 84 N. Y. Supp. 67.
There is no error.
In this opinion Curtis and Keeler, Js., concurred.