MORRIS COLLINS v. CITY OF LOUISA, KENTUCKY
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RENDERED: JULY 7, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002908-MR
MORRIS COLLINS
APPELLANT
APPEAL FROM LAWRENCE CIRCUIT COURT
HONORABLE STEPHEN NICK FRAZIER, JUDGE
ACTION NO. 97-CI-00233
v.
CITY OF LOUISA, KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DYCHE, GUIDUGLI, AND MILLER, JUDGES.
DYCHE, Judge:
This appeal is taken from the entry of summary
judgment finding that appellee, the City of Louisa, was not
required to compensate appellant, Morris Collins, for the loss of
his tools, which were destroyed when an uninsured city building
burned as a result of arson.
In 1995 Collins was hired as a
mechanic and water department worker by
Louisa Mayor James L. Vanhoose.
Following
his employment, a new garage was constructed wherein Collins
performed his mechanic duties.
The garage also served as a base
for various water department, sewer department, and street
department operations.
It was agreed that Collins could use the
garage during his off-hours.
In conjunction with his duties as a
mechanic, Collins was to provide his own tools.
The tools were
worth approximately $18,000.00, and Collins contends that he
therefore sought assurance that the city carried insurance that
would cover his tools.
According to Collins, the issue of
insurance was the first, and most important, subject raised
during the initial discussions regarding his hiring.
Collins
contends that Mayor Vanhoose assured him then, and on several
occasions thereafter, that his tools would be covered by
insurance.
Mayor Vanhoose recalls only two occasions when he
assured Collins that his tools were covered by insurance, once a
few weeks before the fire, and the morning of the fire.
Vanhoose
admits that there may have been several occasions after the fire
when he assured Collins the tools were insured.
As it turns out,
the city’s insurance policies did not cover the garage.
It is
undisputed that Mayor Vanhoose did not intentionally mislead
Collins regarding the insurance coverage, but, rather, was simply
mistaken in his understanding.
In September 1997, city police stored a vehicle
involved in a criminal investigation in the garage.
Shortly
thereafter, the garage was destroyed by fire, probably as a
result of arson, though it apparently is not known for sure that
the motive of the arsonist was to destroy the vehicle.
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Collins’s
tools were destroyed in the fire.
When it turned out the tools
were not covered by insurance, the city counsel voted to
compensate Collins for the loss of his tools.
The city paid
Collins $3,500.00 on the loss of his tools, but upon the advice
of the city attorney that the city’s reimbursement of Collins
would be legally improper, the city counsel rescinded the earlier
resolution.1
On November 13, 1997, Collins filed a complaint in
Lawrence Circuit Court seeking compensation for the loss of his
tools and for loss of income.
The complaint pled that the
conditions of Collins’s employment “create[d] a mutual bailment
of [the] tools,” and that he, as a mutual bailor, was “entitled
to reimbursement for his tools and all other resulting loss by
reason of the tools being destroyed while in the exclusive care
of the city and without any proof of negligence on the part of
anyone other than the city.”
The complaint also noted that
Collins had been assured by the mayor that he would be
compensated for the loss of his tools.
city filed a motion for summary judgment.
On April 25, 1998, the
Based upon the
defenses raised in the motion, on August 10, 1998, Collins filed
a motion to amend his complaint to name Mayor Vanhoose in his
individual capacity based upon a theory of negligent
1
The record does not disclose the basis for the city
attorney’s advice. Under the undisputed facts, we perceive no
bar, following a proper vote by the city counsel, to the city
reimbursing Collins for the loss of his tools. City of Lexington
v. Tank, Ky., 431 S.W.2d 892 (1968) (Principal-agent and masterservant relationships within the scope of respondeat superior
doctrine do exist between a municipal corporation and its
officers and employees).
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misrepresentation.2
The record on appeal does not contain a
ruling on this motion.
On September 14, 1998, the trial court
entered an order granting summary judgment to the city.
Summary
judgment was granted only as to the City of Louisa, and Vanhoose
is not a party to this appeal.
In order to qualify for summary judgment, the movant
must “show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter
of law."
CR 56.03.
On appeal, the standard of review of a
summary judgment is whether the trial court correctly found that
there was no genuine issue as to any material fact and that the
moving party was entitled to judgment as a matter of law.
“The
record must be viewed in a light most favorable to the party
opposing the motion for summary judgment and all doubts are to be
resolved in his favor."
Steelvest, Inc. v. Scansteel Service
Center, Inc., Ky., 807 S.W.2d 476, 480 (1991)(citations omitted).
Summary judgment should only be used when, “as matter of law, it
appears that it would be impossible for the respondent to produce
evidence at the trial warranting a judgment in his favor and
against the movant."
Id. at 483 (citing
Paintsville Hospital
Co. v. Rose, Ky., 683 S.W.2d 255 [1985]).
First, Collins contends that the city violated the
standard of care imposed upon it as a bailee of his tools.
The
trial court found the tool storage arrangement to be a bailment
for the mutual benefit of the parties.
2
Though in his complaint
Collins did not plead negligent misrepresentation, under
the doctrine of respondeat superior, in his original complaint
against the city.
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Collins likewise referred to the circumstances as a “mutual
bailment,”
Collins now rejects this characterization because he
was paid “a mere twenty dollars” per month as tool rental.
We agree with the trial court that the storage of the
tools in the city garage was a bailment for the mutual benefit of
the parties.
Bailment “is generally defined as meaning a
delivery of property for some particular purpose on an express or
implied contract that after the purpose has been fulfilled the
property will be returned to the bailor, or dealt with as he
directs.”
8 C.J.S Bailments § 2 (1988).
The delivery of the
tools to, and subsequent storage on, city property, for rent,
along with the remaining understandings between the parties,
satisfies this definition.
“A bailment for mutual benefit arises
when it appears that both parties to a contract of bailment will
receive a benefit from the transaction.”
(1988).
8 C.J.S Bailments § 16
The storage of the tools at the garage benefitted
Collins in performing his duties both as a city employee and in
his moonlighting work, and, in addition, earned him a rental fee.
The bailment benefitted the city in facilitating needed
mechanical work.
“The rule is that where the relation of bailor and
bailee for hire or mutual benefit exists, the bailee must
exercise ordinary care and diligence in safeguarding the property
and is liable for injury to, or loss of, the property resulting
from his failure to do so, but is not liable for the injury or
loss of the property not resulting from negligence on his part,
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or that of his agents or employees.”3
739, 205 S.W.2d 511, 513 (1947).
Webb v. McDaniels, 305 Ky.
A bailee never becomes an
insurer of the articles intrusted to him, except under the terms
of a special contract creating such an obligation.
Barnett v.
Latonia Jockey Club, 249 Ky. 285, 60 S.W.2d 622, 624 (1933).
“[I]f a bailor makes out a prima facie case and it appears that
the bailed goods were damaged or destroyed by fire, the bailee
has the burden of proving that the fire resulted otherwise than
from his negligence.”
General Truck & Sales Service Co. v.
Schlensker, Ky., 424 S.W.2d 387, 389 (1968) (quoting Threlkeld v.
Breaux Ballard, Inc.,
296 Ky. 344, 177 S.W.2d 157 (1944).
The only act of negligence identified by Collins is the
city’s decision to store the stolen vehicle in the garage.
We
agree with the trial court that the security provided by the city
in this case exceeded the security in a similar case where the
bailee in a bailment for mutual benefit was found to have
exercised ordinary care.
In Webb v. McDaniels, supra, a vehicle
was left overnight in a garage for repairs.
someone broke in and stole the vehicle.
During the night,
The thief gained
entrance by breaking the glass in the door of the garage.
The
garage owner, however, was adjudged to have exercised ordinary
care in protecting the vehicle.
In this case, it is uncontested
that the garage was surrounded by a locked chain link fence
topped with three strands of barbed wire.
3
Further, the garage
In contrast, if this were a bailment for the sole benefit
of the city, the city would owe a greater duty to care for the
tools. Where a bailment is for the sole benefit of the bailee,
he must exercise extraordinary care, and is liable for slight
neglect. Barret v. Ivison, 248 Ky. 243, 138 S.W.2d 1005 (1933).
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was locked, and the tools were located in a locked tool chest
which in turn was located inside of a locked room.
In view of
Webb, we conclude that Collins could not succeed at trial in
proving the city acted negligently in protecting his tools.
The
trial court therefore correctly granted summary judgment as to
the issue of the city’s liability as a bailee of the tools.
Next, Collins argues that the city is liable under
negligence law.
“Fundamentally, a basic element of actionable
negligence is the breach of a legal duty.” Commonwealth,
Transportation. Cabinet, Bureau of Highways v. Roof, Ky., 913
S.W.2d 322, 324 (1996).
There is nothing to distinguish this
argument from the bailment argument just addressed.
As noted
above, the city’s duty as a bailee was to “exercise ordinary care
and diligence in safeguarding the property.”
The only legal duty
that the city had was to exercise ordinary care.
Without more,
the storage of a stolen vehicle in a well secured city-owned
garage is not a breach of the duty of ordinary care owed by the
city to Collins.
Next, Collins contends that the mayor’s assurances that
his tools were insured under the city’s insurance policies
imposes liability on the city.
While there is some dispute as to
exactly how many times the mayor gave such assurances to Collins
prior to the fire, it is uncontested that the mayor represented
to Collins that the tools would be covered by the city’s
insurance policies while stored in the garage and that this
information was incorrect.
Collins contends that he relied on
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this representation in deciding to store his tools in the
garage.4
Citing Louisville Civil Service Board v. Blair, Ky.,
711 S.W.2d 181 (1986), the city contends that regardless of how
many times the mayor told Collins that the tools were insured,
that would impose no liability on the city because a city can
speak through, and be bound only by, its minutes.
We agree.
The
“well-founded interpretation of every . . . act relating to . . .
municipal bodies [is] to the effect that they can function and
contract only as such units and speak by their records, and that
neither such bodies nor the municipalities are bound by any
promise or commitment of the county attorney or other individual
or group of persons.”
Postlethweighte v. Towery, 258 Ky. 468, 80
S.W.2d 541, 542 (1935).
In summary, though it is uncontested that the mayor
mistakenly misrepresented the status of the city’s insurance
coverage as to Collins’s tools, the city is not estopped from
denying that representation (Blair), nor does the
misrepresentation bind the city (Towery).
Summary judgment was
therefore proper as to the issue of the mayor’s misrepresentation
inasmuch as the mayor’s representation could not contractually
bind the city.
Finally, Collins contends that the city has a duty to
compensate him pursuant to the terms of its employment agreement
with Collins.
Collins contends that an “employment agreement”
4
We review this issue in light of the fact that Collins did
not plead negligent misrepresentation in his complaint against
the city.
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existed between him and the city, as negotiated by the mayor
within the course and scope of his duty, which required that
Collins be protected against the loss of his tools, and that,
therefore, the city must honor the express terms of this
agreement.
The mayor does not have the power to create an
employment contract in this manner, i.e., outside the minutes of
the city counsel.
“Generally, the governing body of a municipal
corporation . . .
speaks only through its records and wherein
authority is conferred to either make or terminate contracts by
proceedings and where its acts are recorded and authenticated.”
Board of Education of Perry County v. Jones, Ky., 823 S.W.2d 457,
459 (1992); Postlethweighte, supra.
As we understand the record,
it is uncontested that there are no city counsel minutes
reflecting the city’s obligation to maintain insurance as a term
of Collins’s employment, nor is there a written contract between
the city and Collins with this provision.
“The records [of the
municipal corporation] may not be enlarged or restricted by parol
evidence.”
825 S.W.2d at 459 (citing Lewis v. Board of
Education of Johnson County, Ky., 348 S.W.2d 921 [1961]).
Inasmuch as the minutes are silent as to this term of employment,
the mayor’s oral statements may not be used to enlarge the terms
of employment of Collins beyond that which is reflected in the
minutes of the city counsel so as to make it a term of
employment, and summary judgment is not defeated by this
argument.
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The judgment of the Lawrence Circuit Court granting
summary judgment to the City of Louisa is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael T. Hogan
Louisa, Kentucky
Eldred E. Adams
Louisa, Kentucky
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