Gunderson v. Johnson

• Decision Date: 15 January 1965
• Docket Number: No. 8173,8173
• Citation: 132 N.W.2d 700
• Parties: John GUNDERSON, Plaintiff and Respondent, v. Gordon JOHNSON, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 700

132 N.W.2d 700

John GUNDERSON, Plaintiff and Respondent, v. Gordon JOHNSON, Defendant and Appellant.

No. 8173.

Supreme Court of North Dakota.

Jan. 15, 1965.

Rehearing Denied Feb. 5, 1965.

Syllabus by the Court

1. A depositary for hire or a bailee for the mutual benefit of bailee and bailor must use at least ordinary care for the preservation of the thing deposited or bailed.

2. The evidence in the case is examined and for reasons stated in the opinion we find that defendant, as a bailee for hire, exercised ordinary care and diligence.

3. A provision in a bailment contract for the mutual benefit of bailor and bailee that any loss of cattle by death from normal or ordinary causes should be borne by the bailor did not make the bailee an insurer.

Ella Van Berkom, Minot, for appellant.

Farhart & Thomas Minot, for respondent.

ERICKSTAD, Judge.

This is an appeal by the defendant, Gordon Johnson, from the judgment entered in favor of the plaintiff, John Gunderson, in Mountrail County District Court for $3,360 plus costs. A trial de novo is demanded.

The judgment was for money damages found by the district court to be due Gunderson for the loss of 15 cows (6 of which were with calf) and 1 bull, because of Johnson's negligence in failing to properly care for and control the cattle while they were in his possession.

On appeal, Johnson contends that the evidence does not support the court's finding that he was negligent in the care of the cattle and, thus, that the complaint should be dismissed.

We shall attempt to summarize the pertinent facts.

In August, 1961, Gunderson lived 19 miles southwest of Ross and Johnson lived 13 miles south of Palermo (both located in Mountrail County, North Dakota), their farms being separated by about 30 miles.

Because of drouth conditions in Gunderson's area, he was without pasture for his cattle. Having been acquainted with Johnson for about eleven years and knowing that he 'had been successful in farming for many years' and that he had in the past raised cattle, Gunderson placed his cattle with Johnson.

On August 26, 1961, Gunderson delivered to Johnson at the Johnson farm 26 cows, 1 bull, and 22 calves. The significant portions of a written agreement concerning these cattle, entered into on December 13, 1961, reads as follows:

'THIS AGREEMENT, entered into, in duplicate, this 13th day of December, 1961, by and between John Gunderson, Ross, North Dakota, and hereinafter referred to as the Party of the First Part, and Gordon Johnson, Palermo, North Dakota, and hereinafter referred to as the Party of the Second Part.

'WITNESSETH, That the Party of the First Part has delivered and left with the Party of the Second Part twenty-six (26) head of primarily Hereford cows, all of which are branded '96' or 'R/' (slash R), and one (1) bull also branded '96', and all of which brands appear on the right hip of each of said animals.

'It is further understood and agreed by and between the Parties hereto that the said Party of the Second Part shall furnish all care and feed of such livestock hereinbefore described and that in return therefor the said Party of the Second Part shall receive one-half (1/2) of the entire calf crop from said stock. The other one-half (1/2) of said calf stock to be turned over to the Party of the First Part, or sold or marketed on November 1st of each year during the term of this Agreement, unless otherwise mutually agreed between the Parties hereto.

'It is further understood and agreed by and between the Parties hereto that any loss by death from normal or ordinary causes shall be borne by the Party of the First Part.

'It is further understood and agreed by and between the Parties hereto that this Lease shall be effective irrevocably until November 1, 1962, and will be considered renewed from year to year on the same terms and conditions herein, subject only to termination by either Party by giving written notice of such intent to terminate to the other Party not less than thirty (30) days prior to November 1st in any such year in which termination is contemplated. The 30-day notice shall be computed from the postmark date on any such written notice, and which notice is addressed in the manner hereinbefore set forth as the residence of each of the Parties hereto.'

On April 5, 1962, 15 of the cows and the bull died from consuming grasshopper poison which the cattle, while running at large, found in an old granary on the Per Anderson Estate farm, approximately one and one-quarter miles from the Johnson farm.

When the cattle were delivered to the Johnson farm, they were placed in Johnson's fenced pasture, which was near the farm buildings. When the cattle ate the poison, they had been turned loose to graze at large in the area. Johnson and a number of his neighbors testified that it was customary in that neighborhood to permit cattle to run at large after the fall harvest and before the time that cattle would damage crops in the spring if permitted to continue to run at large. Johnson obtained specific permission to graze the cattle on the land of one of his neighbors by fencing the neighbor's two haystacks but had no permission to graze the cattle on the Anderson Estate land. He testified that he checked the cattle each day when they were running at large.

Arthur Eklund, who lived one and one-quarter miles north of Johnson's farm, in response to a question concerning the practice of permitting cattle to run at large in the fall, testified as follows:

'Q. And about how much, how many people are in that area that let their animals run?

'A. (Counting to himself) Oh, it must be 8, 6, 7, 9.'

Our law in respect to livestock running at large reads:

'36-11-01. Stock running at large prohibited.--No cattle, horses, mules, swine, goats, or sheep shall be permitted to run at large.' North Dakota Century Code.

The cattle had been permitted to run at large in the fall of 1961 following the grain harvest, had been kept in the barn during the winter, and ate the poisoned molassesbran mixture when they were released to run at large in April, 1962. The poison had apparently been in the granary for about thirty years, dating back to the time when the townships handled the disposition of grasshopper poison. The Anderson Estate farm was unfenced and unoccupied and had been so for many years. Other cattle had run on this land since 1945.

Johnson knew that the door of the granary on the Anderson land had been destroyed, but he did not examine the granary to see if there was anything inside that would be injurious to cattle. His testimony in respect thereto is as follows:

'Q. When was this door kicked in by the horses on the building that contained the poison?

'A. It's been off of there for at least nine years.

'Q. But you never did know what was in there?

'A. No.

'Q. You have never gone on the property to look?

'A. I never paid any attention. I never paid any attention in that way.'

Gunderson testified that he was at the Johnson farm in December, 1961, when the calves were picked up for sale. At that time the calves were in the pasture and the other cattle were near the buildings. He stated that on another visit to the Johnson farm later in December, 1961, he found the cattle four or five miles from the Johnson land. He said he told Johnson at that time that 'he should keep a little closer watch, keep them a little closer to home.'

Johnson testified that this visit took place in September or October, not in December; that the cattle were on that occasion grazing on the Anderson Estate land about one and one-quarter miles from the Johnson farm buildings; and that he does not recall a conversation in which Gunderson told him that the cattle should be kept closer to the farm.

Gunderson testified that the cattle had been fed molasses while they were in his possession.

Gunderson also testified that the cows with calf were worth $225 per head; the cows without calf, $190 per head; and the bull, $300.

Mr. Brown, a retired auctioneer and livestock dealer, testified that 'the cows that are to calve and the ones that have calved have usually been selling at the same figure, between two hundred and two hundred and fifty at that time.'

Johnson testified that the cows with calf were worth $200 per head; the cows without calf, $180 per head; and the bull, $300.

The bailor having alleged that his cattle were lost through the negligence of the bailee, the basic issue is whether the bailor has proved that the bailee was negligent in the care of the cattle entrusted to him. In deciding whether the bailee was negligent, let us examine the pertinent sections of our statutes to determine the degree of care required in this instance.

'60-01-10. Storage--Definition--Depository for hire--Definition.--Storage shall mean a deposit which is not gratuitous. The depositary in such case shall be called a depositary for hire.'

'60-01-11. Depositary for hire must use ordinary care.--A depositary for hire must use at least ordinary care for the preservation of the thing deposited.' North Dakota Century Code.

In a case involving depositary...