Lee v. Johnson

Decision Date24 November 1967
Docket NumberNo. 8437,8437
Citation154 N.W.2d 382
PartiesPearlie LEE, Plaintiff and Respondent, v. Oscar JOHNSON, Defendant and Appellant. Civ.
CourtNorth Dakota Supreme Court

Syllabus by the Court

1. Where the thing that caused the plaintiff's damage is shown to be under the control of the defendant and the accident is of such a nature that it does not ordinarily happen in the absence of negligence on the part of the controlling defendant it affords a presumption of negligence which is ordinarily sufficient to make out a prima facie case for the plaintiff and casts upon the defendant the burden of going forward with the evidence.

2. Where there was substantial evidence as to the market value of a horse prior to the accident in which it was injured, and of the market value subsequent to the injury, the trial court was correct in subtracting the latter value from the former in arriving at the measure of damages.

Thomas & Berning, Minot, for appellant.

Pringle, Herigstad, Meschke, Loder, Mahoney & Purdy, Minot, for respondent.

PAULSON, Judge (on reassignment).

The plaintiff, Pearlie Lee, commenced an action for damages incurred by his horse and to his tandem trailer while the two were in the possession of the defendant, Oscar Johnson. The case was tried to the court and plaintiff recovered judgment in the sum of $525, plus costs, for injuries which diminished the value of his animal. The defendant has appealed and demanded a trial anew in this court.

The record disclosed that Lee was a farmer-rancher and the owner of a commercially manufactured tandem horse trailer, in above-average condition, which was used by Lee and his wife and children in regularly transporting horses which were for sale or to be used in rodeos and horse shows. Johnson, a neighboring farmerrancher, who was experienced in the operation of pickup trucks and in the towing of trailers, attempted to secure Lee's trailer to transport Johnson's horse from a ranch near Williston, North Dakota, to Johnson's ranch near Minot, North Dakota. Lee orally agreed to permit Johnson to use the trailer, conditioned upon Johnson's transporting Lee's horse from White Earth, North Dakota, to Lee's ranch near Minot. Johnson, in turn, agreed to these terms and obtained possession of the trailer for the purposes mentioned. Prior to permitting the trip, Lee inquired concerning the travel experience of Johnson's horse, and he was assured by Johnson that his horse was accustomed to riding in a trailer. Johnson also had an opportunity to examine the trailer. Lee did not travel with Johnson on the trip, but Johnson was accompanied by his teen-age daughter, and by his brother, who died prior to the trial. Johnson's pickup truck was used to tow the trailer and Johnson proceeded to a ranch near Williston where he loaded his own horse into the trailer. He later drove to a ranch near White Earth where he stopped and loaded Lee's horse. Johnson then drove to Stanley, North Dakota, where he stopped to check the horses and trailer before leaving for Minot. Several miles east of Stanley, on Highway No. 2, the trailer suddenly swerved, causing the pickup truck to run off the highway, whereby the trailer was severely damaged and the horses were injured. The accident occurred on a dry, paved highway, in the afternoon. Johnson asserted that his vision was unobstructed, that there was no mechanical failure of his vehicle, as well as no intervening cause other than a possible slight gust of wind, nor was there other vehicular traffic which caused any difficulty. Johnson further asserted that he was traveling at a speed of approximately 40 to 45 miles an hour at the time the trailer suddenly began to swerve, but he offered no other explanation for the cause of the accident.

Lee's testimony emphasizes that the trailer was frequently used by his wife and children; that it had been trailed in safety at speeds varying from 40 to 70 miles an hour; and the trailer was maintained in above-average condition. The testimony of Lee shows that his horse, which he purchased at a figure of $350, was a registered quarter horse, which was thereafter extensively trained by another rancher. It had been purchased especially for the dual purposes of use as a stock horse and in rodeo events. Lee attempted to use the horse in the spring of 1964, approximately a year after the accident, which occurred in April of 1963, but discovered that the horse's withers had been damaged and the horse could not be used either as a rodeo or stock horse. He thereafter sold the horse for the sum of $125. Johnson testified that he did not check the horse for any injury or disability at the time he loaded it in the trailer at the ranch near White Earth. Lee had the horse checked by a veterinarian shortly after the accident but this examination did not reveal any apparent injury to the withers.

This case presents two primary issues: first, has the plaintiff proved by a preponderance of the evidence that the defendant was liable; and,...

To continue reading

Request your trial
5 cases
  • Soby Const., Inc. v. Skjonsby Truck Line, Inc.
    • United States
    • North Dakota Supreme Court
    • February 1, 1979
    ...proving that a bailment for hire existed and that the bailee failed to deliver the bailed goods. This rule was followed in Lee v. Johnson, 154 N.W.2d 382 (N.D.1967), a case in which property of the bailor was damaged while in the control of the bailee under a bailment for mutual benefit. In......
  • F-M Potatoes, Inc. v. Suda
    • United States
    • North Dakota Supreme Court
    • October 26, 1977
    ...to redeliver the bailed goods, a presumption of negligence arises against the bailee. This rule was also followed in Lee v. Johnson, 154 N.W.2d 382 (N.D.1967). Subsequent to the decisions in McKenzie and Johnson, supra, this court adopted Rule 301(a) of the North Dakota Rules of Evidence, r......
  • U.S.A. v. Sicher
    • United States
    • U.S. Court of Appeals — Third Circuit
    • December 7, 2000
    ... ... 2000) ("[t]he special condition imposed need not be related to each and every one of the factors"); United States v. Abrar, 58 F.3d 43, 46 (2d Cir. 1995) ("a condition may be imposed if it is reasonably related to any one or more of the specified factors"); United States v. Johnson", 998 F.2d 696, 698 (9th Cir. 1993) (the language of S 3553(a) offers \"a list of factors to guide the district court's discretion rather than a checklist of requisites, each of which must be found before any condition of supervised release may be prescribed\"). No circuit has held otherwise ...   \xC2" ... ...
  • Great Plains Supply Co. v. Mobil Oil Co.
    • United States
    • North Dakota Supreme Court
    • November 3, 1969
    ...v. Miller, 72 S.D. 185, 31 N.W.2d 328 (1948); Reimers v. Petersen, 237 Iowa 550, 22 N.W.2d 817 (1946). This court, in Lee v. Johnson, 154 N.W.2d 382, 385 (N.D.1967), also considered the element of Vernon D. Johnson, the manager of Great Plains, testified that Great Plains subcontracted to D......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT