McGinness v. Gossman
| Decision Date | 30 April 1964 |
| Docket Number | No. 36867,36867 |
| Court | Washington Supreme Court |
| Parties | E. Logan McGINNESS, doing business as McGinness Brothers, Appellant, v. Hugh GOSSMAN and Constance Gossman, husband and wife, Respondents. |
Davies, Pearson, Anderson & Pearson, Tacoma, for appellant.
Campbell & Manning, Puyallup, for respondents.
The respondent Hugh Gossman, a Puyallup pharmacist who was also engaged in the cattle-raising business, ordered two Charolais heifers and a bull from the appellant, whose ranch is in Missouri. In expectation of their arrival, he built two corrals at his farm five miles from Puyallup. He had been advised of the approximate date of arrival of the animals, which were being transported in a truck driven by an employee of the appellant.
On Monday morning, April 25, 1961, the truck driver called the respondent from Oregon and advised him that the truck would arrive that evening. He was instructed by the respondent to proceed to the respondent's place of business in Puyallup. That same afternoon, the respondent went to his farm where he directed an employee in painting the corrals with a paint stain which he had mixed himself. Before the painting was finished, he returned to his place of business in Puyallup.
The truck arrived after dark that evening. The respondent suggested to the driver that he park the truck in his parking lot for the night, but the driver stated that the cattle should be taken off the truck and fed and watered after their long haul. Accordingly, they went to the farm where the animals were unloaded into one of the corrals, which was equipped with a loading chute. The driver told the respondent that a second bull which was in the truck should be kept separated from the respondent's animals, because he was a much larger animal and might injure them. This bull was to be delivered to a purchaser in Oregon. To effect this separation, the animals ordered by the respondent were put in the second pen.
A neighbor who had come to watch the unloading called the attention of the respondent and the driver to a bucket of liquid. It was quickly removed, and the respondent told the driver that the pail contained paint stain, but said he did not think the cattle would drink it. The two were concerned nevertheless that the animals might have drunk some of the paint stain and stayed at the corrals observing them for almost an hour. During this time, they saw no sign of illness.
Early the next morning, the respondent went to the farm and found the two heifers dead. An autopsy revealed that they had died of poisoning, as a result of having consumed some of the paint stain. The respondent notified the appellant that he rejected the shipment, because the heifers had ringworm and the bull was infested with lice. The bull was returned to the appellant's ranch. He brought this action for the reasonable value of the heifers, contending that their death was the result of negligence on the part of the respondent.
The trial court found that the respondent's negligence did not cause the death of the heifers, because they had been put in the second corral at the instance of the appellant's driver. The court found that the deaths were the result of negligence on the part of the driver in bringing the cattle to the farm in a condition of extreme thirst, in requiring that they be placed in a separate pen, and in failing to call a veterinarian when he became aware that they might have consumed some of the paint stain. It was also stated by the court in its memorandum decision that if the paint had been left in the first corral, which was the receiving corral, the court would have been inclined to grant judgment for the appellant, but that 'under the circumstances, * * * Gossman, or his employee, could not foresee that the pen where the pail was left would be used.' In accordance with these findings, judgment was entered in favor of the respondent.
It is conceded by the appellant that this was a sale on approval and that title had not passed. The rule is that a buyer is liable for the purchase price, where he is unable to return the goods due to their loss through his fault or negligence. Mann v. Trabue, 1 Mo. 709 (1827); Nichols v. Balch, 8 Misc. 452, 28 N.Y.S. 667 (1894). Where personal property is delivered upon the understanding that it will be returned if it is not satisfactory, a bailment is created. 8 Am.Jur. (2d), Bailments § 33, p. 940. If a bailment is for the mutual benefit of the bailee and bailor, as is the case here, the bailee has a duty to exercise ordinary care...
To continue reading
Request your trial
-
Farmers Butter and Dairy Co-op. v. Farm Bureau Mut. Ins. Co.
...by bailor to bailee, on a trial basis with privilege of purchase, created a bailment for mutual benefit. See McGinness v. Gossman, 64 Wash.2d 363 391 P.2d 967, 969 (Wash.); Elliott on Bail ments, § 23 (2d ed.); 8 Am.Jur.2d, Bailments, §§ 6, 10, 33; 8 C.J.S. Bailments §§ 3(4), 8a; accord, Ma......
-
Prior Bros., Inc., Matter of
...gives the purchaser the right to use and the option to purchase after a reasonable period of time, is a bailment. McGinness v. Gossman, 64 Wash.2d 363, 391 P.2d 967 (1964); W. Raushenbush, Brown on Personal Property § 10.5 at 234 (3d ed. 1975). In a bailment, title to the goods delivered re......
-
New Products Development Services, Inc.
...benefit, the bailee has a duty to exercise ordinary care to see that the property is not lost, damaged, or destroyed. Mcginness v. Gossman, 391 P.2d 967 (1964). cases, unless the parties stipulate otherwise, the manner of redelivery is governed by the customary methods used under the circum......
- Rickert v. Geppert