KOSRAE STATE COURT TRIAL DIVISION
Cite as Palik v. PKC Auto Repair Shop
13 FSM Intrm. 93 (Kos. S. Ct. Tr. 2004)

[13 FSM Intrm. 93]

DANIEL B. PALIK,
Plaintiff,
 
vs.
 
PKC AUTO REPAIR SHOP,   
Defendant.
 
SMALL CLAIM No. 53-04
 
MEMORANDUM OF DECISION; JUDGMENT
 
Aliksa B. Aliksa
Associate Justice
 
Hearing: October 4, 2004
Decided: December 27, 2004

APPEARANCES:

For the Plaintiff:                 Lyndon L. Cornelius
                                           Micronesian Legal Services Corporation
                                           P.O. Box 38
                                           Tofol, Kosrae FM 96944

[13 FSM Intrm. 94]

For the Defendant:           Snyder Simon
                                          P.O. Box 1017
                                          Tofol, Kosrae FM 96944

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HEADNOTES

Property ) Personal ) Bailment
     A bailment is created by the delivery of personal property by one person to another, in trust for a specific purpose, pursuant to an express or implied contract to fulfill the trust. Palik v. PKC Auto Repair Shop, 13 FSM Intrm. 93, 96 (Kos. S. Ct. Tr. 2004).
 
Property ) Personal ) Bailment; Torts ) Duty of Care
     The delivery of property to another under an agreement to repair is a bailment. Palik v. PKC Auto Repair Shop, 13 FSM Intrm. 93, 96 (Kos. S. Ct. Tr. 2004).
 
Property ) Personal ) Bailment
     The bailee, having custody of the bailor's property, has the obligation to exercise due care to protect the property from loss, damage or destruction. Palik v. PKC Auto Repair Shop, 13 FSM Intrm. 93, 96 (Kos. S. Ct. Tr. 2004).
 
Property ) Personal ) Bailment; Torts ) Negligence
     A presumption arises that a bailee who has sole actual and exclusive possession of the goods has been negligent if he cannot explain the loss, disappearance or damage of the bailed property, its parts or contents. Palik v. PKC Auto Repair Shop, 13 FSM Intrm. 93, 96 (Kos. S. Ct. Tr. 2004).
 
Property ) Personal ) Bailment; Torts ) Negligence
     A bailee is liable for all repairs and replacement for the bailed property that are necessary due to his neglect or lack of care. Palik v. PKC Auto Repair Shop, 13 FSM Intrm. 93, 96 (Kos. S. Ct. Tr. 2004).
 
Evidence ) Judicial Notice; Property ) Personal ) Bailment; Torts ) Negligence
     In assessing damages, the court may take judicial notice of the prevailing cost in Kosrae of items similar to the ones lost. Palik v. PKC Auto Repair Shop, 13 FSM Intrm. 93, 96 (Kos. S. Ct. Tr. 2004).
 
Equity
     The exercise of equity is justified for the court to order the return of a unique pocketknife to the plaintiff when that unique item is not available for purchase on Kosrae. Palik v. PKC Auto Repair Shop, 13 FSM Intrm. 93, 96 (Kos. S. Ct. Tr. 2004).
 
Contracts
     When the plaintiff had accepted the defendant's condition that the jeep could not be returned to its original condition and continued to request that defendant work on the jeep, the plaintiff had accepted the defendant's condition regarding workmanship on the jeep and the defendant's inability to return the jeep to its original condition and the plaintiff is thus not entitled to recover his claim for additional work completed later by another. Palik v. PKC Auto Repair Shop, 13 FSM Intrm. 93, 96 (Kos. S. Ct. Tr. 2004).

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[13 FSM Intrm. 95]

COURT’S OPINION

ALIKSA B. ALIKSA, Associate Justice:

      This small claim was filed to seek recovery of $745.16, related to the repair of Plaintiff's vehicle at the Defendant's Auto Shop. The hearing on this small claim was held on October 4, 2004. Lyndon L. Cornelius, MLSC, appeared for the Plaintiff. Defendant was represented by Snyder Simon. The following witnesses testified at the hearing: Daniel B. Palik, Palmerson Charley, Palikoa Charley and Melrin Escolero. Both parties filed their closing arguments on October 15, 2004. After the hearing, I took the matter under advisement. This memorandum of decision sets forth my findings, decision and reasoning.

I. Finding of Fact.

     Based upon the evidence received at the hearing, I find the following facts. On May 2002, Plaintiff took his jeep to the Defendant for body repair. The back door, side and back window glass and the rear floor of the jeep were to be repaired by the Defendant. The Defendant's agent, Palokoa Charley, agreed to complete the repairs requested by the Plaintiff. Mr. Charley inspected the damage to the jeep and told the Plaintiff that the jeep could not be repaired to its original condition. The Plaintiff accepted the Defendant's conditions and continued his request for Defendant to work on his jeep.

    Plaintiff left the jeep at Defendant's facility, and ordered a new door for the jeep. While awaiting arrival of the new door and during the jeep's repair, the jeep remained at Defendant's facility from May 2002 through August 2003. When the jeep was left at Defendant's facility, it contained a new battery, a working stereo, a religious cassette and a pocketknife marked with the Continental logo.

     In August 2003, the repair work was completed on the jeep. While the jeep was at Defendant's facility, the mechanic worked on the body of the jeep. The body of the jeep was modified so that the new door did not fit completely right. The outside of the jeep door was covered so that there has no handle on the outside to open the door. This modification to the jeep door was completed with the Plaintiff's agreement. The window glass that was installed into the back door was glued on. Plaintiff was instructed to leave the jeep unmoved for 48 hours to allow the glue to set. The Plaintiff did not follow these instructions, and began using the jeep immediately. Plaintiff paid the Defendant the amount of $1,235.87 and picked up the jeep from the Defendant.

     After one day of using the jeep, the glass fell off the jeep. Plaintiff further claimed that the side window glass was not glued into its proper position and the floor of the jeep was not fixed properly. Plaintiff was not satisfied with the quality of Defendant's workmanship. Plaintiff hired another mechanic, Clanton Mongkeya, to perform additional work on the jeep, at an additional cost of $200 to the Plaintiff.

     While the jeep was at the Defendant's facility, the lock and handle assembly from the old damaged door was lost. The new battery was also removed from the jeep while it was at the Defendant's facility. A religious cassette and a pocketknife marked with the Continental logo were also taken from the jeep while it was at Defendant's facility. Plaintiff's pocketknife was later seen by Plaintiff at Okat Airport in the possession of one of the Defendant's owner's relatives. There was conflicting evidence regarding the condition of the stereo. Plaintiff claims that the stereo became inoperable while the jeep was at Defendant's facility. Defendant claimed that the stereo was still working when the Plaintiff took back his jeep.

[13 FSM Intrm. 96]

II. Analysis.

     A bailment is created by the delivery of personal property by one person to another, in trust for a specific purpose, pursuant to an express or implied contract to fulfill the trust. 8A Am. Jur. 2d Bailments § 1, at 465 (2d ed. 1997). The delivery of property to another under an agreement to repair is a bailment. Id. § 5, at 468. Here, a bailment was created by the Plaintiff's delivery of his jeep to the Defendant, for the specific purpose of repairing the jeep by the Defendant.

     The bailee, having custody of the bailor's property, has the obligation to exercise due care to protect the property from loss, damage or destruction. Id. § 110, at 567. Here, the Defendant bailee, having custody of the Plaintiff's jeep, had the obligation to exercise due care for the jeep and protect the jeep from loss, damage or destruction. The Defendant had the obligation to protect against the loss of the jeep's parts and contents, including the lock and handle assemble, the battery, the cassette and pocketknife.

     A presumption arises that a bailee who has sole actual and exclusive possession of the goods has been negligent if he cannot explain the loss, disappearance or damage of the bailed property, its parts or contents. See id. § 116, at 574. Here the Defendant had sole, actual and exclusive possession of the Plaintiff's jeep and is therefore negligent for the loss, disappearance, or damage to the jeep, its parts and contents.

     A bailee is liable for all repairs and replacement for the bailed property that are necessary due to his neglect or lack of care. Id. § 119, at 576. Here, the Defendant is liable for repairs and replacements for the jeep are necessary due to negligence for damage or loss which occurred while the jeep was in its custody. The Defendant is liable for the replacement cost of the lock and handle assembly, the battery, the cassette and the pocketknife. The replacement cost of the lock and handle assembly is $337.66. The cost of replacing the battery is $55.00. With respect to the value of the lost cassette, I take judicial notice that the prevailing cost of similar cassettes in the State of Kosrae is $10. Therefore, I find that the Defendant is liable for the replacement cost of the lost religious cassette at $10. The Plaintiff's pocketknife which was lost by the Defendant was a unique item with the Continental logo, and not available for purchase in Kosrae. The Plaintiff had seen the pocketknife in the possession of one of the Defendant's agent's relatives. Accordingly, I find that the exercise of equity is justified here, to return the unique pocketknife to the Plaintiff. I order the Defendant to return the subject pocketknife to the Plaintiff.

     I have carefully considered the Plaintiff's claims for additional repairs done to the jeep to correct workmanship defects of the Defendant. Based upon the evidence presented at the hearing, I found that the Defendant's agent had informed the Plaintiff that the jeep could not be repaired to its original condition. The Plaintiff had accepted the Defendant's condition and continued to request that Defendant work on the jeep. I conclude that the Plaintiff had accepted the Defendant's condition regarding workmanship on the jeep and the Defendant's inability to return the jeep to its original condition. Accordingly, the Plaintiff is not entitled to recover his claim of $200 expended for the additional work completed by Mr. Mongkeya.

     In summary, I conclude that the Defendant is liable to the Plaintiff in the amount of $405.16, which includes the replacement costs of the lock and handle assembly, the battery and the cassette, and this Court's filing fee. Defendant is further liable to return the pocketknife with the Continental logo to the Plaintiff.

[13 FSM Intrm. 97]

III. Judgment.

     Judgment is entered in favor of the Plaintiff and against the Defendant, in the amount of $405.16. Defendant shall return the subject pocketknife to the Plaintiff.

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