Hebert v. Patrick

• Decision Date: 08 March 1915
• Docket Number: 4082
• Citation: 27 Colo.App. 204,146 P. 190
• Parties: HERBERT v. PATRICK et al.
• Court: Colorado Court of Appeals

146 P. 190

27 Colo.App. 204

HERBERT v. PATRICK et al.

No. 4082

Court of Appeals of Colorado

March 8, 1915

Rehearing Denied April 12, 1915.

Error to District Court, Adams County; H.S. Class, Judge.

Action by Joseph C. Hebert against Mary Patrick and others. There was a judgment for defendants, and plaintiff brings error. Affirmed.

Duncan McPhail, of Denver, for plaintiff in error. John A. Rush, of Denver (Lewis C. Rush, of Denver, of counsel), for defendants in error.

MORGAN J.

In the lower court the plaintiff in error sued the defendants in error for the value of a horse intrusted by the plaintiff to the defendants to pasture, as agisters, at an agreed sum per month. The horse escaped or was stolen, and on demand the defendants were unable to restore it to the plaintiff. Trial to a jury and verdict for defendants.

First the plaintiff contends that the court erred in instructing the jury that the burden of proof was upon the plaintiff to prove that defendants did not use ordinary care in keeping the horse, and in refusing to give an instruction that the burden was upon the defendants in this respect. Under the law of agistment, or bailment, the owner of the animal agisted in a suit for its value, after demand and failure to return may be said to make out a prima facie case when he has alleged and proved the agistment, the demand, and failure to return. 3 R.C.L. § 74, p. 151, citing Prince v. Alabama State Fair, 106 Ala. 340, 17 So. 449, 28 L.R.A. 716; Mariatt v Levee Steam Cotton Press Co., 10 La. 583, 29 Am.Dec. 468; Beardslee v. Richardson, 11 Wend. (N.Y.) 25, 25 Am.Dec. 596, and note; Schwerin v. McKie, 51 N.Y. 181 10 Am.Rep. 581; Canfield v. Baltimore & O.R. Co., 93 N.Y. 532, 45 Am.Rep. 268. But after the agister pleads and proves that the animal escaped by jumping over a lawful fence, or was stolen, as was done in this case, or otherwise explains the loss in a way that discloses no negligence on his part, the burden shifts to the plaintiff. It is not necessary for the defendant to go further and prove affirmatively no negligence on his part, because his prima facie exoneration shifts the burden to the plaintiff. Schouler on Bailments (3d Ed.) § 23. The agister is not an insurer of the safety or return of the animal, but, in the event of loss, and a prima facie exoneration on his part, he is only liable on proof of negligence or want of ordinary care. 1 R.C.L. 1079, § 20, citing Arrington v. Fleming, 117 Ga. 449, 43 S.E. 691, 97 Am.St.Rep. 169; Doolittle v. Shaw, 92 Iowa 348, 60 N.W. 621, 26 L.R.A. 366, and note, 54 Am.St.Rep. 562. It follows, from the foregoing authorities, that there was no error in this respect. The only negligence referred to in the testimony was as to the character and condition of the fence, and, as the evidence...