Laundry v. Davis
| Decision Date | 08 April 1924 |
| Docket Number | Case Number: 12928 |
| Citation | 225 P. 345,1924 OK 412,98 Okla. 264 |
| Parties | RIGHT WAY LAUNDRY v. DAVIS. |
| Court | Oklahoma Supreme Court |
¶0 1. Bailment--Action Against Cleaner and Presser for Value of Clothes Not Returned--Burden of Proof.
In an action by the bailor against the bailee for hire to recover the value of a suit of clothes delivered by the bailor to the bailee for cleaning and pressing, where the bailee has failed to deliver the same to the bailor on demand, the burden of establishing negligence rests upon the bailor, but this burden is satisfied when the bailor has shown a delivery of the property to the bailee and a failure or refusal by the bailee to make delivery upon demand and is sufficient to cast upon the bailee the burden of explaining his failure to make delivery on demand.
2. Same--Loss by Fire--Negligence--Jury Question.
Where it was made to appear by the evidence of the defendant that the suit of clothes was injured and destroyed for all practical purposes by fire caused by an explosion in the tumbler where it was in the process of drying, it was a question for the jury, under proper instructions, to say whether the loss was caused by the negligence of the defendant.
3. Same -- Parties Defendant -- Action Against One Partner Alone.
An action of tort may be maintained against one member of a partnership without joining the other; and, in an action to recover for the loss of a suit of clothes brought against one member of a partnership engaged in the cleaning and pressing business, where it was made to appear by the evidence that the suit was delivered to the defendant and received by him and delivered to the partnership to be cleaned and pressed, it was not reversible error to instruct the jury that if they "found by a preponderance of the evidence that either the defendant or the partnership was liable, then, and in that event, the defendant would be liable for the obligations of the partnership."
Commissioners' Opinion, Division No. 1.
Error from County Court, Tulsa County; Z. I. J. Holt, Judge.
Action by Earl Davis against the Right Way Laundry, a corporation. Judgment for plaintiff, and defendant appeals. Affirmed.
Nelson & Blair, for plaintiff in error.
S.E. Dunn, for defendant in error.
¶1 Plaintiff alleged in his bill of particulars that he delivered to the defendant one suit of clothes of the value of $ 50 for the purpose of having it cleaned and pressed, and the defendant received it for that purpose and had failed and refused to return it although demand had been made therefor. Plaintiff testified that he delivered the suit in the morning to a young lady in the front of the building where they received laundry packages; that he went back that afternoon to get the suit and was informed that it had been burned up during the day; the gas tank had exploded and caught fire and burned up the suit.
¶2 It is contended that the plaintiff's evidence showed that the damage to the suit was caused by fire and the plaintiff having failed to show any negligence on the part of the defendant which caused the fire, the court should have sustained defendant's demurrer to the evidence.
¶3 The statement by plaintiff that he was informed that it had been destroyed by fire was not evidence that it had been so destroyed. It was merely a statement of the excuse given for not making delivery.
¶4 In the body of the opinion in Smith v. Maher, 84 Okla. 49, 202 P. 321, Justice Kennamer said:
¶5 The defendant's evidence showed that the suit was in the tumbler, where it was being dried, when an explosion from some unknown cause caused a fire in the tumbler which so burned it that it was destroyed for all practical purposes. The only way that defendant's witnesses could account for the explosion was that a match in some garment had escaped the detection of the cleaner, or that it was caused by two garments rubbing together. Evidence also showed that the tumbler was in a steel and concrete room with doors and windows that passed the inspection of the fire marshal, and fire extinguishers were maintained by which they could turn a two-inch line of steam into any machine, and that steam is the best extinguisher for gasoline fires. No evidence was offered as to who was actually in control of the tumbler at the time, or that any one had actually examined all the garments in the tumbler at the time for matches, but defendant relied on the evidence that they had a man for that purpose.
¶6 It is contended that the bailee for hire is only required to exercise ordinary care, and that when it was disclosed by the evidence that the bailed property had been destroyed by fire the burden was on the plaintiff to show negligence on the part of the defendant. The court so instructed the jury and no question is raised as to the instruction. It was a question for the...
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Okla. City Hotel Co. v. Levine
...to deliver same, as in this case, is sufficient proof to make out a prima facie case in behalf of the plaintiff. Rightway Laundry v. Davis, 98 Okla. 264, 225 P. 345; Hotels Statler Co. v. Safer, supra. The burden to go forward with the evidence then shifted to the defendant; it was the duty......
- Right Way Laundry v. Davis