Cluer v. Leahy

• Decision Date: 19 May 1927
• Docket Number: 4590
• Citation: 44 Idaho 320,256 P. 760
• Parties: S. A. CLUER, Respondent, v. M. J. LEAHY, Appellant
• Court: Idaho Supreme Court

256 P. 760

44 Idaho 320

S. A. CLUER, Respondent, v. M. J. LEAHY, Appellant

No. 4590

Supreme Court of Idaho

May 19, 1927

CLAIM AND DELIVERY-BAILMENT-PRIMA FACIE CASE-TRIAL-BURDEN OF PROOF-ADMISSIBILITY OF REBUTTAL TESTIMONY.

1. In action to recover for value of certain sheep which plaintiff had placed in defendant's care, evidence of delivery of sheep to defendant with failure to return them on demand held to establish a prima facie case.

2. Burden of proof is on bailee to explain failure to redeliver property given to his care, on demand for same.

3. In action to recover value of certain sheep which plaintiff had placed in defendant's care, rebuttal testimony relative to figures on barn representing number of sheep belonging to plaintiff was admissible to counter defendant's testimony relative to employees making figures thereon on occasion of count of sheep.

4. Relevant testimony is admissible in rebuttal, though tending to support case in chief.

APPEAL from the District Court of the Fourth Judicial District, for Camas County. Hon. Raymond L. Givens, Judge.

Action in claim and delivery. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs to respondent.

R. M Angel, for Appellant.

"The burden of proof rests on plaintiff to show negligence on the part of defendant." (29 Cyc. 597; Holt v. Spokane &amp P. R. Co., 4 Idaho 443, 40 P. 56.)

"It is incumbent on the plaintiff to make a prima facie case in his favor, showing that the demand claimed by him resulted from the negligence of the defendant, and where it affirmatively appears from his own evidence that the want of prudence on his part was the proximate cause of injury, he cannot recover. (Dufour v. Central P. R. Co., 67 Cal. 319, 7 P. 769.)

"The burden rests on the plaintiff not only to prove that defendant was negligent, but also that such negligence was the proximate cause of his injury." (29 Cyc. 589, 600; Hopkins v. Utah Northern R. Co., 2 Idaho (277) 300 13 P. 343.)

Frank Croner, for Respondent.

"Proof of Ioss or injury establishes a sufficient prima facie case against the bailee to put him upon his defense. Where chattels are delivered to a bailee in good condition and are returned in a damaged state, or are lost or not returned at all, the law presumes negligence to be the cause, and casts upon the bailee the burden of showing that the loss is due to other causes consistent with due care on his part." (6 C. J., pp. 1158-1160, and cases there cited.)

T. BAILEY LEE, J. Budge and Taylor, JJ., concur. Wm. E. Lee, C. J., did not participate in the decision.

OPINION

T. BAILEY LEE, J.

Plaintiff, S. A. Cluer, filed his complaint against defendant, M. J. Leahy, seeking to recover, in his first four causes of action, for labor performed and for goods sold and delivered; and in the fifth to recover for the value of certain sheep which plaintiff had placed in defendant's care for pasturing and feeding in the mountains north of Camas Prairie, in Camas county. Defendant answered, denying the allegations of the complaint and setting up a counterclaim for pasturing and caring for plaintiff's sheep during the years 1920, 1921 and 1922. The cause was tried to the court without a jury, and at the trial plaintiff's first four causes of action were not disputed, nor was defendant's counterclaim, except an item of $ 7.77 for damages. Findings and conclusions having been waived by the parties, the court rendered judgment for plaintiff in the sum of $ 435.28 and costs.

Defendant has appealed, assigning as error (1) the admission by the court of the testimony of plaintiff as to certain marks upon a barn which plaintiff saw for the first time ten months after they were presumably placed there by some person not disclosed by the evidence, and to which defendant objected; (2) that the evidence is insufficient to warrant the court in rendering its judgment against the defendant; and (3) that the court erred in rendering its judgment against the defendant.

The contest is over the fifth cause of action wherein defendant is charged with having failed to account for 69 head of plaintiff's sheep. Plaintiff testified that on or about November 24, 1922, pursuant to agreement between himself and defendant, the latter took charge of 130 head of plaintiff's sheep to pasture and care for during the winter season. As to his claim that there were 130 head in the band, he is to an extent corroborated by one, Grant Terry, who helped drive them from the Cluer ranch to the hills where they were turned over to defendant. Terry testified positively that he turned over 120 head to Leahy's sheepherder, and that he told Leahy, who, at the time, "was sitting up in the car at the bottom of the trial," there were 120 head. Plaintiff testified that on February 15, 1923, demand was made on defendant for the return of the sheep and that only 61 of the 130 head were turned over to him, showing 69 head unaccounted for. Plaintiff thus established a prima facie case.

"The rule adopted in the more...