Knowles v. Gilchrist Co.

• Decision Date: 28 November 1972
• Citation: 362 Mass. 642,289 N.E.2d 879
• Parties: , 11 UCC Rep.Serv. 1040 Mary E. KNOWLES v. GILCHRIST COMPANY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 879

289 N.E.2d 879

362 Mass. 642, 11 UCC Rep.Serv. 1040

Mary E. KNOWLES v. GILCHRIST COMPANY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 13, 1972.

Decided Nov. 28, 1972.

James J. Cotter, III, Dorchester (Paula W. Gold, Boston, with him), for plaintiff.

William G. Downey, Quincy (Edwin R. Trafton, Boston, with him), for defendant Gilchrist Co.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER, HENNESSEY, KAPLAN and WILKINS, JJ.

TAURO, Chief Justice.

The plaintiff (bailor) in an action of tort and contract in the Municipal Court against the defendant Gilchrist Company (bailee) seeks to recover damages for loss of certain articles of furniture in the bailee's possession pursuant to an agreement by the bailee to reupholster and return furniture to the bailor. There was a finding for the bailor in the amount of $800. ¹ The bailee claimed a report to the Appellate Division on the basis of the judge's refusal to allow the following requests for rulings. (1) On all the evidence a finding for the bailee is required. (2) On all the law, a finding for the bailee is required. (7) The evidence is insufficient to warrant a finding for the bailor as to the extent of her damage. The Appellate Division vacated the Municipal Court's finding for the bailor and ordered judgment for the bailee. The bailor appeals.

The Appellate Division rested its decision on the basis of our cases which have held that the bailor has the burden of proving by a fair preponderance of the evidence that the bailee broke the bailment contract by its negligence in caring for the goods. The Appellate Division decided that denial of the bailee's requests for rulings was error because the bailor intoduced no evidence that the loss was caused by the bailee's negligence. ²

We think the Appellate Division's decision requires a reexamination of the Massachusetts common law rule which places on the bailor the burden of proving that the bailee negligently broke its bailment contract. Well established case authority in Massachusetts and in most other States has followed this rule despite the obvious problems in situations where, because the property was in the bailee's exclusive possession, the bailor has no knowledge of or access to the facts concerning its loss.

Originally, Massachusetts case law made a distinction between tort and contract actions in deciding where the burden of proof would be fixed. In Cass v. Boston & Lowell R.R., 14 Allen 448 (1867), the plaintiff bailor brought a contract action against a warehouseman to recover for the bailee's failure to return the goods entrusted to it. This court held that when the bailor alleged and proved that the bailee had received the bailor's property and failed to deliver it upon timely demand, the bailee had the burden of proving that the goods had been lost without any fault on its part. The pleadings were held to be decisive on the issue of burden of proof. This court noted that 'The instructions of the court (as to the burden of proof) of course must correspond to the form of the action. The rule which has been often stated, that a decision should not be made to turn upon the state of the pleadings, . . . has no application to the case' (p. 451). Since the bailor had sued in contract, he had not alleged that the bailee was negligent. The Cass opinion placed the burden of proving the absence of negligence on the party who alleged it in its pleadings, namely, the bailee. This line of reasoning led the court to conclude that the burden of proof lies on the bailor in tort actions because the bailor must allege negligence in his pleadings. The court concluded, '(W) hen a plaintiff founds his action upon negligence, or a cupable omission of duty, the burden is upon him to establish it by proof' (pp. 451--452). However, since the plaintiff in the Cass case had sued in contract, the defendant bailee had to 'show an excuse for the non-performance of . . . (its) promise; and the burden of proof was upon . . . (it) to establish . . . (its) excuse.' The Cass case, supra, at 452.

Thus, the majority opinion in the Cass case created a rule predicated on the art of pleading. The application of this rule to cases decided before the Cass case, supra, produced conflicting results. The Cass opinion reaffirmed Lamb v. Western R.R., 7 Allen 98, despite the fact that the Lamb case had held that the plaintiff bailor had the burden of prioving the bailee's negligence in its breach of contract count as well as in its tort count. The Cass court explained this contradiction by noting that in the Lamb case, the contract count, as well as the tort count, had alleged the defendant bailee's negligence in caring for the goods. As a result of this court's majority ruling in the Cass case (until Willett v. Rich, 142 Mass. 356, 7 N.E. 776), allocation of the burden of proof depended on the relative skills of the attorneys for the parties in drafting the pleadings. The bailor could place the burden of proving the absence of negligence on the bailee simply by suing in contract and not alleging negligence on the bailee's part.

Chief Justice Bigelow in his dissenting opinion in the Cass case also relied on a pleading rationale to allocate the burden of proof. His position was that ultimately the plaintiff bailor had to show a want of due care on the bailee's part to prove that the bailee breached his contract. Since the bailee 'did not agree to keep or deliver the property absolutely and unconditionally, if nothing else is shown but a failure to deliver it, without any facts from which negligence can be inferred, the plaintiff stops short in establishing any ground for recovery.' The Cass case, supra, 14 Allen at 456. Although he attacked the majority's ruling which resolved the issue by looking to the format of the pleadings, Chief Justice Bigelow adopted a parallel premise that the burden of proving all the essential elements of any cause of action lies on the party that pleads that cause of action. In his view, since the bailor must ultimately claim negligence when the bailee alleges impossibility as a defence to nondelivery, the burden of proving the bailee's negligence must lie on the bailor.

Just twenty years later, this court adopted Chief Justice Bigelow's dissent as the law and in effect overruled the Cass case in the Willett case. In the Willett case, this court reversed on the basis of a trial court's instruction which placed the burden of proof in a breach of contract suit on the bailee to show that the damage to the bailed property occurred without his fault. The court noted (142 Mass. p. 357, 7 N.E. p. 777) that 'The fundamental rule as to the burden of proof is, that, whenever the existence of any fact is necessary in order that a party may make out his case, or establish a defense, the burden is on such party to show the existence of such fact.' Thus, the Willett case established the rule, which is followed by most other jurisdictions, that the bailor has the burden of proving the bailee's negligence, regardless of whether the bailor's action sounds in tort or contract.

One serious problem created by fixing the burden of proof on the bailor is well illustrated by this court's decision in Little v. Lynn & Marblehead Real Estate Co., 301 Mass. 156, 16 N.E.2d 688. In a case with very similar facts to those in the instant case, the bailor sued the bailee after a fire in the bailee's premises destroyed the bailor's property. The bailee introduced evidence which established only that the fire prevented the return of the bailed property to the bailor. This court noted, 'The fact that the fire originated in the defendant's premises is not evidence that it was started by the defendant; nor is it evidence that the fire was caused by any negligence on its part. . . . (Citations omitted.) The defendant is liable if its negligence caused the fire, 'but until its cause is known or fairly found from the evidence (the fire) cannot be said to be due to (the defendant's) negligence,' Stewart v. DeNoon, 220 Penn.St. 154, 161, 69 A. 587, 589.' The Little case, supra, at 159, s6 N.E.2d at 690. Under this rule, since the bailor has the burden of proving the bailee's negligence, the bailee can simply plead impossibility as a defence, introduce evidence of a fire and rest as the bailee did in the instant case, even though the bailee may be the only party with access to the facts surrounding the loss.

In response to the obvious inequities and difficulties created by fixing the burden of proof on the bailor, recent decisions by State and Federal courts have held that the bailor can establish an inference or presumption of negligence merely by showing a bailment and failure to deliver by the bailee. Once the bailor makes this showing, the burden of production shifts to the bailee to go forward with evidence to rebut this presumption. See Buntin v. Fletchas, 257 F.2d 512 (5th Cir.); Moss v. Bailey Sales & Serv. Inc., 385 Pa. 547, 123 A.2d 425; Trammell v. Whitlock, 150 Tex. 500, 242 S.W.2d 157. The United States Supreme Court adopted this procedure for proof of negligence in Commercial Molasses Corp. v. New York Tank Barge Corp., 314 U.S. 104, 62 S.Ct. 156, 86 L.Ed. 89. The court noted (pp. 110--111, 62 S.Ct. p. 160) that, in exclusive bailment cases, 'the burden of proving the breach of duty or obligation rests upon him who must assert it as the ground of the recovery which he seeks . . .. Since the bailee in general is in a better position than the bailor to know the cause of the loss and to show that it was one (not) involving the bailee's liability, the law lays on him the duty to come forward with the information available to him. . . . It does not cause the burden of proof to shift, and if the bailee does go forward with evidence enough to raise doubts as to the validity of the inference (of negligence on the bailee's part), which the trier of fact is unable to resolve, the bailor does not...