Nutt v. Davison

• Decision Date: 07 April 1913
• Citation: 54 Colo. 586,131 P. 390
• Parties: NUTT v. DAVISON.
• Court: Colorado Supreme Court

131 P. 390

54 Colo. 586

NUTT v. DAVISON.

Supreme Court of Colorado, En Banc.

April 7, 1913

Error to District Court, Montrose County; Sprigg Shackleford Judge.

Action by Thomas Nutt against L. A. Davison. Judgment for defendant and plaintiff brings error. Reversed.

S. S. Sherman, of Montrose, for plaintiff in error.

Bell Catlin & Blake, of Montrose (P. W. Mothersill, of Denver, of counsel), for defendant in error.

WHITE J.

This is an action brought by a bailor against a bailee in whose exclusive and immediate possession the property bailed, or a portion thereof, suffered injury and was destroyed. The judgment was in favor of the bailee, and the bailor brings the cause here for review. The subject of bailment was approximately 400 head of cattle, intrusted to the bailee for a fee, to be cared for during a specified time, upon a designated cattle range, and at the expiration of the term returned to the bailor. The greater portion of the cattle were received by the bailee April 1st, and the remainder May 20th. Between these dates at least 10 of the first herd had died, of which fact the bailee had knowledge but did not apprise the bailor thereof when he received the second herd, though at that time he asked of the bailor and received of him personally a check in part payment for his services under the contract of bailment. During the first 60 days of the term, 97 head of the cattle died. It was the contention of the bailor that the cattle died from starvation and exposure by reason of confinement in a pasture, at a high altitude, not sufficiently supplied with food and shelter, while the defendant claimed they were placed and kept therein temporarily by direction of the plaintiff.

Over the objection and exception of plaintiff, the court instructed the jury, in effect, that, before the plaintiff could maintain his cause of action and recover against the defendant, he must show the cause of the death of the cattle and that they died only by reason of the negligence of the bailee, and of what that negligence consisted. We think the court erred in so instructing the jury. While the authorities are in conflict, the greater weight thereof and the better reason place the duty upon the bailee to satisfactorily explain the nondelivery of the thing bailed, or its delivery in an injured condition such as only culpable carelessness would probably have caused.

The general rule is that in cases where the evidence shows that the property was delivered to the bailee in good condition and returned damaged, or not at all, the presumption of negligence on the part of the bailee instantly arises, making a prima facie case in favor of the bailor, and thereupon the bailee is under the necessity, if he would escape liability, of showing that the damage or loss was not due to his negligence. This may be done inter alia, by showing that he exercised a degree of care, under all the facts and circumstances, sufficient to overcome the presumption of negligence. Union Pacific R. R. Co. v. Stupeck, 50 Colo. 151, 114 P. 646; Schouler's Bailments & Carriers (3d Ed.) § 23; 5 Cyc. p. 217; 3 Am. & Eng. Ency. of Law (2d Ed.) p. 750; Funkhouser v. Wagner, 62 Ill. 59; Higman v. Camody, 112 Ala. 267, 20 So. 480, 57 Am.St.Rep. 33.

The rule rests upon the consideration that where the bailee has exclusive possession, the facts attending loss or injury must be peculiarly within his own knowledge. Besides, the failure to return the property, or its return in an injured condition, constitutes the violation of a contract, and it devolves upon the bailee to excuse or justify the breach. A clear summary of the law, as to the liability of the bailee for loss or injury to the thing bailed, is bound in a note to section 23 of Schouler's Bailments &amp Carriers, supra, where it is said: 'Admitting the danger of wide generalizations on this subject, and granting the force of special circumstances in each case, we may perhaps fairly reach these conclusions: (1) That the bailor who charges his bailee with losing or injuring the thing bailed to him must make out his prima facie case; that is, he must show the creation of the particular bailment in fact, and the delivery on his own part of the specified thing in due condition, with corresponding acceptance by the bailee; also, the bailee's default of final delivery over, or else the final delivery of the thing in unsuitable condition, as the case may be. And whatever might obstruct a prima facie showing to this point, and justify an inference that the thing was injured by himself or his agents, or by his or their participation in the mischief, or that its inherent qualities would naturally have developed the mischief--all this the plaintiff must overcome to make out his case. (2) The prima facie case being thus made out as claimed, showing (a) that the property...