Cumins v. Wood

• Decision Date: 30 April 1867
• Parties: SOLON CUMINS et al.v.WILLIAM WOOD.
• Court: Illinois Supreme Court

44 Ill. 416

1867 WL 5175 (Ill.)

92 Am.Dec. 189

SOLON CUMINS et al.

v.WILLIAM WOOD.

Supreme Court of Illinois.

April Term, 1867.

APPEAL from the Circuit Court of Cook county; the Hon. E. S. WILLIAMS, Judge, presiding.

This was an action on the case, brought in the court below, by William Wood against Cumins & King, to recover the value of certain articles of household furniture, stored with the defendants by the plaintiff, and alleged to have been lost or broken while in the care of the defendants.

The court found the issue for the plaintiff, and assessed his damages at $250, and judgment was entered accordingly.

The defendants bring the cause to this court by appeal.

The only question arising under the assignment of errors is, upon whom lies the burden of proof as to the fact of negligence in respect to the loss and injury of the goods.

Messrs. WILLIAMS & THOMPSON, for the appellants.

The authorities in England are believed to be uniform and to this effect: that in cases of bailment, whether the action be assumpsit or case, the plaintiff must prove that the loss or damage to the article bailed occurred through the negligence of the bailee. Finacune v. Small, 1 Esp. 315; Cooper v. Barton, 3 Camp. 5; Gilbert v. Dale, 5 Ad. & E. 543; Harris v. Parkwood, 3 Taunt. 564; Story on Bailments, § 454.

We find no English case where an action against a bailee was maintained for the loss or injury of articles bailed, unless the plaintiff proved the negligence, and that the loss was in consequence of it, or unless the defendants were common carriers and insurers.

In this country the decisions have not been uniform to that extent, and in some cases, when the action was assumpsit, the plaintiff has been allowed to recover, unless the defendant returned the goods or gave an account of the manner of the loss; but, where the action has been case, the plaintiff has been required to prove the negligence of the defendant. Platt v. Hibbard, 7 Cow. 500.

This case has been referred to in all subsequent cases, but is in reality of no authority. The judge charged the jury that the burden of proving diligence and care was upon the defendant, the bailee. The point, however, was not decided by the court, and the reporter states the rule to be otherwise.

The following cases show the rule in New York to be the same as in England. Harrington v. Snyder, 3 Barb. 380; Bush v. Miller, 13 Id. 481; Foote v. Storrs, 2 Id. 326; Schmidt v. Blood, 9 Wend. 268; Beardslee v. Richardson, 11 Id. 25.

The case of Foote v. Storrs, supra, expressly overrules the charge of the judge as given in Platt v. Hibbard.

In Runyan v. Caldwell, 7 Humph. 154, the defendant hired a negro boy of the plaintiff for a year, and during the year the boy disappeared; whether he escaped or died was unknown. The court held, that the burden of proving negligence rested upon the plaintiff, and the defendant was not bound in the first instance to prove that he exercised due diligence and care.

In Pennsylvania the authorities have not been uniform. Clarke v. Spence, 10 Watts, 335; Buchanan v. Shouse, 5 Rawle, 179; Logan v. Matthews,6 Penn. St. 419.

In the last case, which was assumpsit, the defendants had hired a horse and buggy of the plaintiff and returned them in an injured condition. The court held, that the defendant must either return the property hired in proper condition or must satisfactorily account for the injury.

In Bennett v. O'Brien, 37 Ill. 250, which was a case where the greatest diligence was required, a strong intimation is made that in cases like the present, the burden of proof would be upon the plaintiff.

Professor Parsons holds, that the proper rule is that stated in Logan v. Matthews, while Judge Story and Chancellor Kent, in their commentaries, state that the English rule is the proper one. 1 Parsons on Contracts, 686 (bottom paging); Story on Bailments, § 410; 2 Kent Com. 587 (side paging).

The cases of C. & A. R. R. v. Howard, 38 Ill. 414, and L. P. & B. R. R. v. Caldwell, Id. 280, are in point.

The first expressly states that the party who alleges negligence must prove it; the second goes further, and decides that the plaintiff must not only show negligence, but must show that the loss or injury took place by means of such negligence.

These are the cases that have been discovered on both sides of this question, and we are confident that it will be found, that, although there is some conflict as to the party upon whom the burden of proof rests, when the form of action is not known or is overlooked, yet not a single case will be found which decides that, when negligence must be shown by the plaintiff, it is sufficiently proven by showing merely a failure to deliver the property.

It will not be denied, it being alleged in the declaration that the loss occurred through the negligence of the defendant, that it is incumbent upon the plaintiff to offer some proof of such negligence.

In actions against attorneys for negligence, the plaintiff must show, not only that loss occurred, but that the loss occurred by the fault of the attorney.

In actions against railway companies for injuries to passengers, the plaintiff must prove, not only that the defendant was negligent, and that the injury was in consequence of such negligence, but he must also prove that the plaintiff exercised due care. Chicago, Burlington and Quincy R. R. v. Dewey, 26 Ill. 255; Same v. Hazzard, Id. 373.

In actions against railroads for killing stock, the burden of proof is upon the plaintiff, and is not met by showing the bare killing of the stock by the train. Illinois Central R. R. v. Reedy, 17 Ill. 580; G. & C. R. R. v. Crawford, 25 Id. 529.

To the general rule, that the plaintiff must prove his case affirmatively, there are but few exceptions, and none of them can relieve the plaintiff in this case of the necessity of showing negligence, as that is the foundation of his action. It cannot be said that the proof required in this case is peculiarly within the knowledge of the defendant, for his neglect of duty may be easily shown, and the cases above cited in this State expressly negative such an assumption. And neglect of duty or lack of care is not a negative averment, which requires proof from the opposite party to rebut the presumption of its truth. 1 Greenl. Ev. §§ 79, 81.

This action should have been in assumpsit, on the express promise contained in the receipt, to redeliver the property. In Spangler v. Eicholtz, 25 Ill. 297, this court says there is an implied promise to take reasonable care of goods deposited, and to redeliver them on request. That was an action...