Low v. Park Price Co.

• Decision Date: 13 November 1972
• Docket Number: No. 11030,11030
• Parties: , 11 UCC Rep.Serv. 1041 Dale K. LOW, Plaintiff-Appellant, v. PARK PRICE COMPANY, whose true name is Highway Motor Company, an Idaho corporation doing business under trade name of Park Price Motors, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 291

503 P.2d 291

95 Idaho 91, 11 UCC Rep.Serv. 1041

Dale K. LOW, Plaintiff-Appellant, v. PARK PRICE COMPANY, whose true name is Highway Motor Company, an Idaho corporation doing business under trade name of Park Price Motors, Defendant-Respondent.

No. 11030.

Supreme Court of Idaho.

Nov. 13, 1972.

Rehearing Denied Dec. 11, 1972.

Lynn E. Thomas, of Johnson & Olson, Pocatello, for plaintiff-appellant.

R. Don Bistline, Pocatello, for defendant-respondent.

DONALDSON, Justice.

The defendant-respondent, Highway Motor Company, dba Park Price Motors, operates an automobile repair garage in Pocatello, Idaho. On December 2, 1969, Cal Dale Low, the son of plaintiff-appellant Dale K. Low, brought the latter's car to the respondent's garage for repairs. In order to make these repairs, it was necessary to remove the engine from the appellant's car. Having removed the engine, the respondent stored the car in an unfenced area between the garage and an adjacent street. While the vehicle was stored in this location, its transmission disappeared. On or about December 18, the respondent told the appellant that the transmission had been stolen. Exactly when and by whom the transmission was removed are facts which remain unknown.

The respondent disclaimed any obligation to compensate the appellant for the loss of his transmission. The appellant then commenced this action for conversion and, in the alternative, for negligence. The parties stipulated that the lost transmission had a reasonable market value of five hundred dollars. In its answer, and at the trial, the respondent admitted its status as 'bailee' of the appellant's automobile. ¹ After a nonjury trial, the district court entered judgment in favor of the respondent garage owner and denied the appellant car owner's motion for a new trial. This appeal followed.

In its initial conclusion of law, the district court stated that the respondent, as a bailee for hire, owed the appellant-bailor the 'highest degree of care' to protect the bailed property. Although this ruling has not been assigned as error, both parties to this appeal recognize that this is not a correct statement of the applicable law. As a bailee for hire, a repair garage operator is required to exercise ordinary or reasonable care to protect vehicles entrusted to his custody for repairs or servicing. Carson v. Bye, 79 Idaho 495, 321 P.2d 604 (1958); Glover v. Spraker, 50 Idaho 16, 292 P. 613 (1930); Rosendahl v. Lemhi Valley Bank, 43 Idaho 273, 281 P. 293 (1926); Kelley v. Capital Motors, Inc., 204 S.C. 304, 28 S.E.2d 836 (1944); Chaloupka v. Cyr, 63 Wash.2d 463, 387 P.2d 740 (1964); 14 Blashfield, Automobile Law and Practice §§ 476.1, 476.22 (3 ed. F. Lewis 1969); R. Brown, The Law of Personal Property § 81 (2d ed. 1955); Allen, Liabilities of Garages other than those arising from Collisions of Automobiles, 1966 A.B.A. Section of Insurance Negligence and Compensation 230, 237 (1966); Annot., 48 A.L.R. 378, 380 (1927); 38 Am.Jur.2d Garages, and Filling and Parking Stations, §§ 49, 59 (1968); cf. Annot., 7 A.L.R.3d 927, 935 (1966).

In his work on evidence, Professor George Bell correctly observes that: 'The bailment cases in Idaho have practically exhausted the various possibilities for allocating the different burdens of proof. It is difficult, if not impossible, to unravel the contradictory holdings.' G. Bell, Handbook of Evidence for the Idaho Lawyer 223 (1957). In Rosendahl v. Lemhi Valley Bank, supra, the Court indicated that after the bailor had proved the bailment and the bailee had shown that the bailed property had been stolen, the burden was on the bailor to show that the bailee had not exercised ordinary care. Id. 43 Idaho at 278, 251 P. 293. In Cluer v. Leahy, 44 Idaho 320, 256 P. 760 (1927), the Court stated that where chattels are delivered to a bailee and returned in a damaged state, or are lost or not returned at all, the law presumes negligence to be the cause and casts upon the bailee the burden of showing that the loss is due to other causes consistent with due care on his part. But, the Court went on to say, the burden of proving negligence remains on the bailor throughout the trial, although the presumption arising from injury to the goods or failure to redeliver is sufficient to satisfy this burden and to make out a prima facie case against the bailee. In Cluer, the record contained no evidence 'satisfactorily explaining the loss' of the bailed property, nor did it contain any 'direct proof of negligence.' Id. at 324, 256 P. 760. Judgment in favor of the bailor was then affirmed on the ground that the bailee had failed to account for the loss of the bailor's property. In another case decided the same year as Cluer, the following statement of the rule appears:

'Ordinarily, where property is injured, lost, or destroyed while in possession of a bailee, a presumption of negligence arises, making a prima facie case, and casting upon the bailee the burden of showing that the loss was due to other causes consistent with due care on his part. (Citing Cluer v. Leahy, supra.) But, when it appears that the loss or injury was caused by fire or other extraordinary intervention, the burden is upon the bailor to prove a lack of ordinary care or violation of some specific duty by the bailee resulting in the proximate cause of the damage. (Citing Rosendahl v. Lemhi Valley Bank, supra, and authorities from other jurisdictions.)' Carscallen v. Lakeside Highway Dist., 44 Idaho 724, 727-728, 260 P. 162, 163 (1927).

Twenty years later, in Burt v. Blackfoot Motor Supply Co., 67 Idaho 548, 553, 186 P.2d 498, 501 (1947), the Court said:

'When a bailor sues the bailee to recover for loss or damage to bailed property and alleges and undertakes to prove negligence, the burden is upon him so to do.

Where the property is in the sole and exclusive possession of the bailee and is lost or damages, a prima facie case is made by the plaintiff (bailor) when he shows the property was bailed to the bailee and has not been returned on demand, or has been damaged. It is then incumbent upon the bailee to show that such loss or damage was without negligence upon his part.'

The inference left by the Burt case was that when a bailor does not specifically allege negligence in his complaint, the bailee then has the burden of persuading the fact finder that he had exercised ordinary care. Such a rule makes the allocation of the burden of persuasion depend on the niceties of pleading; nevertheless, this position has been taken in many jurisdictions. See Sweet, Burden of Proof of Bailee's Negligence in Connection with His Failure to Redeliver, 8 Hastings L.J. 89 (1956). More recently, in Dick v. Reese, 90 Idaho 447, 452, 412 P.2d 815 (1966) (dealing with the alleged improper performance of automobile repairs), the Court, without citing any of the aforementioned Idaho cases, stated that upon the establishment of a prima facie case of negligence, the burden of going forward-but not the burden of persuasion-shifts to the bailee.

None of the Idaho cases we have reviewed set down any reasons for their positions on the question of whether the bailee or the bailor has the burden of proof. However, in Shockley v. Tennyson Transfer & Storage, 76 Idaho 131, 134-135, 278 P.2d 795, 797 (1955), where the bailee's liability was governed by the provisions of the Uniform Warehouse Receipts Law, the Court stated:

'A warehouseman, subject to the provisions of the act, who is unable to deliver the goods because of their destruction by fire of unknown origin, bears the burden of proving that he exercised due care, and that the bailed goods were not destroyed because of his negligence. * * *

The warehouseman is in a better position to know and prove the cause of the fire and to account for the injury or loss of the goods than is the bailor. The bailor, generally speaking, does not have the knowledge or information, nor equal means to acquire it. Establishing that the origin of the fire is unknown is not sufficient in itself to free the warehouseman from liability.' Emphasis added.

The emphasized language is significant; the logic employed is as applicable to a bailee who accepts a chattel for repair as it is to a warehouseman. In either case, the bailee has undertaken, for consideration, to use ordinary care in the safekeeping of a chattel. Downey v. Martin Aircraft Service, 96 Cal.App.2d 94, 214 P.2d 581, 584 (1950). And as the Supreme Court of Oregon has stated:

'In the absence of some very compelling reason for taking a different course, the courts should avoid the incongruity of one rule for bailees subject to the Warehouse Receipts Act and a different rule for other bailees.' National Fire Ins. Co. v. Mogan, 186 Or. 285, 206 P.2d 963, 967 (1949).

Until its repeal in 1967, I.C. § 69-108 in pertinent part provided that 'the burden shall be upon the warehouseman to establish the existence of a lawful excuse' for his failure to deliver the bailed goods. Effective December 31, 1967, I.C. § 69-108 was superseded by the pertinent Uniform Commercial Code provision, § 7-403 (I.C. § 28-7-403). The drafters of the U.C.C. left it optional with each state adopting the code whether the burden of proving negligence should be upon the bailor or the burden of proving reasonable care upon the bailee. Thus, the official text of U.C.C. 7-403(1)(b) (as it appears in Uniform Laws Annotated) in pertinent part provides:

'(1) The bailee must deliver the goods * * * unless and to the extent that the bailee establishes any of the following:

(b) damage to or delay, loss or destruction of the goods for which the bailee is not liable (, but the burden of establishing negligence in such cases is on the person entitled under the document (i. e., on the bailor));

Note: The brackets in (1)(b) indicate that State enactments may differ on this point without serious damage to the principle of uniformity.'

When I.C. § 28-7-403 was enacted, the bracketed language was...