Burley v. Hurley-Mason Co.

• Decision Date: 08 July 1920
• Docket Number: 15895.
• Citation: 111 Wash. 415,191 P. 630
• Court: Washington Supreme Court
• Parties: BURLEY et al. v. HURLEY-MASON CO.

191 P. 630

111 Wash. 415

BURLEY et al. v. HURLEY-MASON CO.

No. 15895.

Supreme Court of Washington

July 8, 1920

Department 1.

Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.

Action by Thomas S. Burley and Robert McCullough, doing business as the Tacoma Tug & Barge Company, against the Hurley-Mason Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Stiles & Latcham, of Tacoma, for appellant.

Remann & Gordon, of Tacoma, for respondents.

MAIN J.

The purpose of this action was to recover damages to a scow. The cause was tried to the court without a jury and resulted in findings of fact, conclusions of law, and judgment sustaining the plaintiffs' right to recover. From this judgment the defendant appeals. The essential facts may be summarized as follows:

The respondents are copartners doing business under the firm name of Tacoma Tug & Barge Company. The appellant is a corporation organized under the laws of this state. The appellant was constructing a concrete base for a pavilion at Point Defiance, on the shore of Puget Sound, in the city of Tacoma. On or about the 27th day of June, 1919, the respondents delivered at or near the pavilion a barge loaded with sand and gravel. This barge remained in possession of the appellant for approximately three weeks. From time to time it was caused to be moved by the appellant from one location to another to accommodate its convenience in getting the sand and gravel from the scow and using it in the construction work. When the scow was redelivered to the respondents its bottom at one place near one of the corners thereof was in such a damaged condition that it leaked badly. The boards were splintered as though that point of the scow had rested upon some hard surface while the remaining portion of the scow was afloat. When the scow was first delivered the captain of the tugboat refused to moor it in a place indicated by the superintendent of the works because he did not know the nature of the bottom at that place. The parties admit that the relation created by the delivery of the scow was that of bailment for their mutual benefit.

Before taking up the consideration of the questions of fact, two rules of law should be stated, the first of which is that the appellant did not become liable as an insurer for any damage that the scow might sustain while in its possession, but only for the failure to exercise ordinary care. Thompson v. Seattle Park Co., 94 Wash. 539, 162 P. 994. The other rule is that in cases where property is delivered to the bailee in good condition and returned damaged a presumption arises of negligence on the part of the bailee and casts upon him the burden of showing the exercise of ordinary care. Patterson v. Wenatchee Canning Co., 53 Wash. 155, 101 P. 721; Kingsley v Standard Lumber Co., 84 Wash. 189, 146 P. 369. With these rules of law in mind, attention will now be given to the questions of fact presented by the appeal. It is first claimed that there is no showing that the scow was in good condition at the time it was delivered. The trial court on this question found...