Liberty Mut. Fire Ins. Co. v. Hubbard
| Decision Date | 15 July 1976 |
| Citation | 275 Or. 567,551 P.2d 1288 |
| Parties | LIBERTY MUTUAL FIRE INSURANCE COMPANY, a Foreign Corporation, Appellant, v. C. M. HUBBARD, Sr., et ux., and C. M. Hubbard, Jr., dba C. M. Hubbard & Son, Respondents. |
| Court | Oregon Supreme Court |
Randall E. Thwing, of Thwing, Atherly & Butler, Eugene, argued the cause and filed briefs for appellant.
Todd Brown, Corvallis, argued the cause for respondents. With him on the brief were Michael F. McClain and McClain, Brown, Evashevski & Marek, Corvallis.
Before DENECKE, C.J., and McALLISTER, HOLMAN, TONGUE, HOWELL and BRYSON, JJ.
The plaintiff, subrogated to the rights of its insured, Farm Machinery, Inc., brought this action to recover $14,000 which it paid for the insured's combine equipment destroyed by fire. Plaintiff's complaint alleged two grounds for recovery in separate counts: (1) common law bailment; (2) a written contract for rental of the combine. The trial court granted defendants' motion for involuntary nonsuit as to the second count and submitted the case to the jury on the first count. Judgment was entered in favor of defendants on the jury's verdict, and plaintiff appeals.
Plaintiff first contends that the 'trial court erred in sustaining the defendants' motion for involuntary nonsuit' as to the second count.
Defendants had rented farm equipment from Farm Machinery, Inc., for a number of years. In August 1973 defendants rented the combine pursuant to an oral agreement which covered only the rate of rental and maintenance of the equipment when in defendants' possession. Defendants had possession and use of the combine for 19 days. It was cleaned, oiled, and fueled daily. During operation on August 21, 1973, the combine was destroyed by fire. An oily, burning substance was seen dripping to the ground from the equipment when the fire was discovered.
After the fire the parties signed a rental contract which included new terms, placing the responsibility for any loss or damage to the equipment on defendants-lessees. The oral agreement did not contain such a provision.
Plaintiff relies upon O.R. & N. Co. v. Swinburne, 22 Or. 574, 30 P. 322 (1892), and Beach v. Brightwood Co., 132 Or. 345, 285 P. 259 (1930), for the proposition that such an agreement 'will relate back and take effect in accordance with its terms and the intentions of the parties' and that the parties can 'agree that the contract shall take effect as of a date earlier than that on which it is executed.' We do not disagree with this statement of the law, but neither of the cases relied on involve bailment situations. They are distinguishable on the facts.
It is well established that a modification of a contract, such as here contended, must be supported by new consideration. Cameron v. Edgemont Investment Co., 149 Or. 396, 402, 41 P.2d 249 (1935); Marnon v. Vaughan Motor Co., Inc., 184 Or. 103, 157, 194 P.2d 992 (1948); Carothers v. Carothers, 260 Or. 99, 105, 488 P.2d 1185 (1971). There was no additional consideration for the later written contract. Therefore, the trial court did not err in granting the nonsuit as to plaintiff's second count.
The plaintiff also contends the 'trial court erred in denying the plaintiff's motion for directed verdict.' In Hansen v. Oregon-Wash. R. & N. Co., 97 Or. 190, 225, 191 P. 655, 656 (1920), this court stated:
'* * * Proof of delivery in good condition and return in bad condition are the two facts which support the disputable presumption of negligence; and these two facts, plus the disputable presumption, make a Prima facie case, and suffice for the proof of the ultimate fact of negligence, 'until contradicted and overcome by other evidence': Section 695, L.O.L.'
See also National Fire Ins. Co. v. Mogan et al., 186 Or. 285, 294, 206 P.2d 963 (1949)...
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Roberts v. Mitchell Bros. Truck Lines
...proof, however, remains with the bailor-plaintiff to show negligence on the part of the bailee-defendant. Liberty Mutual Fire Ins. v. Hubbard, 275 Or. 567, 571, 551 P.2d 1288 (1976); National Fire Insurance Co. v. Mogan et al., supra, at 291-92, 206 P.2d 963; Hines Lumber Co. v. Purvine Log......
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WHECO Corporation v. Ross Bros. & Company, Inc., No. 22529-1-III (WA 5/24/2005), 22529-1-III
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...bailee from liability. We adhere to the views expressed in National Fire Ins. Co. v. Mogan et al.' See also Liberty Mutual Fire Ins. v. Hubbard, 275 Or. 567, 551 P.2d 1288 (1976). Accord, McCormick on Evidence 808--09, § 343 (2d ed. Defendant's affirmative defense alleges in part as follows......
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Roberts v. Mitchell Bros. Truck Lines, A7704
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