Buchanan v. Byrd

• Decision Date: 05 February 1975
• Docket Number: No. B--4865,B--4865
• Citation: 519 S.W.2d 841
• Parties: B. H. BUCHANAN, Petitioner, v. Robert A. BYRD, Jr., et al., Respondents.
• Court: Texas Supreme Court

Page 841

519 S.W.2d 841

B. H. BUCHANAN, Petitioner, v. Robert A. BYRD, Jr., et al., Respondents.

No. B--4865.

Supreme Court of Texas.

Feb. 5, 1975.

Rehearing Denied March 5, 1975.

Tabor & Fowler, Craig M. Fowler and O. Glenn Weaver, Irving, for petitioner.

McGuire, Levy & Collins, Albert Levy and John E. Collins, Irving, for respondents.

DANIEL, Justice.

This is a bailor-bailee controversy in which the plaintiff, B. H. Buchanan, sought to recover for the loss of a horse which was being kept and boarded by the defendants, Byrd and Barksdale. Trial without a jury resulted in a $1,930 judgment for plaintiff. Findings of fact and conclusions of law were not requested or filed. The court of civil appeals reversed and rendered. 515 S.W.2d 378. We reverse the judgment of the court of civil appeals and remand the case to that court for consideration of defendants' point alleging excessive damages.

For a fee of forty dollars per month the defendants agreed to feed and keep Buchanan's horse on their five-acre tract in Irving. The tract contained a caretaker's house, a barn with ten stalls whose gates opened into a fenced run-a-round, and small fenced pastures used only for exercise due to lack of sufficient grass for grazing. Defendants were boarding a total of seven horses on the premises, four of which were their own. The horses and facilities were cared for by Byrd's brother-in-law, who lived on the premises.

Details of the oral bailment contract were disputed with reference to whether plaintiff's horse was to be kept in a stall and the adjoining barn compound except 'at times during the day when he can be supervised' while turned out into the pasture for exercise. Plaintiff Buchanan testified that defendant Byrd so agreed, and Byrd testified that he did not recall any such representation. In the absence of findings of fact, the trial court's judgment must be viewed as impliedly finding all necessary facts in support of its judgment. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1951). There was evidence which would support a finding that plaintiff's version of the bailment contract was correct.

Nevertheless, the horses were in one of the pastures and not in their stalls or the barn compound on the night of March 4, 1972. About midnight all of them got out of the pasture, apparently through an open gate. They left the defendants' premises, and plaintiff's horse and one owned by the defendants were killed by a train about one mile away. Defendant Byrd testified that the pasture gate and fences were secure when he left the premises about dark on March 4; that his brother-in-law customarily checked the barn, gates, and fences, but he was away from home for the evening and returned about midnight; that he did not know whether his brother-in-law checked them that night; but his brother-in-law found the pasture gate open the next morning after neighbors notified him the horses were out. The brother-in-law did not testify. Defendant Byrd further testified that he had problems twice before with horses getting out of the pasture, once when they pushed over a panel of the fence and once when someone left a gate open; that the gate and fences were in good condition when he examined them on March 5; that he did not know whether the horses opened the gate or whether it was left open on the night of March 4; and that he had no idea as to how the horses got out.

The defendant, Byrd and Barksdale, contend that the trial court erred in rendering judgment against them because there was no evidence of any negligent act on their part that proximately caused the escape and inability to return Buchanan's horse. In a bailment for mutual benefit, a rebuttable presumption of negligence and a prima facie case of liability is established by a bailor against the bailee upon proof that the bailed chattel was not returned. The applicable rule was stated by this Court in Trammell v. Whitlock, 150 Tex. 500, 242 S.W.2d 157 (1951), as follows:

'The defendant-petitioner is correct in his contention that the burden of proof on the whole case, including the issue of negligence, is on the respondent bailor, but as stated in Wigmore on Evidence, 3rd Ed., § 2508, 'Where goods have been committed to a bailee, and have either been lost or been returned in a damaged condition, and the bailee's liability depends upon his negligence, the fact of negligence may be presumed, placing on the bailee at least the duty of producing evidence of some other cause of loss or injury.' Without prejudice to the burden of proof being at all times on the bailor, the bailor under this latter rule makes a prima facie or presumptive case of negligence by proving the bailment and either the return of the goods by the bailee in a damaged condition, not existing at the time of their delivery to him, or a failure by him to return them at all. The rule is said to be based on the just and common sense view that the party in possession or control of an article is more likely to know and more properly charged with explaining the damage to it or disappearance of it than the bailor who entrusted it to his care. It is evidently supported by the weight of authority in the United States, including our own state. See cases collected in 8 C.J.S. Bailments § 50, n. 87; 6 Am.Jur. (Rev.Ed.), Bailments § 371, n. 17; Rhodes v. Turner, Tex.Civ.App., 171 S.W.2d 208, mandamus to certify questions refused in Rhodes v. McDonald, 141 Tex. 478, 172 S.W.2d 972; Callihan v. Montrief, Tex.Civ.App., 71 S.W.2d 564, er. ref.; Alpine Forwarding Co. v. Pennsylvania R. Co., 2 Cir., 60 F.2d 734, 736; Gilland v. Peter's Dry Cleaning Co., 195 S.C. 417, 11 S.E.2d 857; Thomas v. Hackney, 192 Ala. 27, 68 So. 296.'

The defendant bailees concede that the plaintiff bailor 'made out a prima facie case by establishing that the horse was not returned,' but defendants contend, and the court of civil appeals agreed, that they had explained and rebutted the presumption of their negligence by evidence that the premises (pasture gate and fences) were in good repair; that no damage to the premises was found or repaired after the horses' escape; that a caretaker lived on the premises; and that neither plaintiff nor his daughter (principal user of the horse) had ever made any complaint about the condition of the premises. We ...