Shropshire v. Sidebottom

• Decision Date: 23 May 1904
• Citation: 76 P. 941,30 Mont. 406
• Parties: SHROPSHIRE v. SIDEBOTTOM.
• Court: Montana Supreme Court

76 P. 941

30 Mont. 406

SHROPSHIRE v. SIDEBOTTOM.

Supreme Court of Montana

May 23, 1904

Commissioners' Opinion. Appeal from District Court, Silver Bow County; J. B McClernan, Judge.

Action by J. S. Shropshire against R. B. Sidebottom. Judgment for plaintiff. Defendant appeals. Affirmed.

M. E Le Blanc and J. Bruce Kremer, for appellant.

Dan Yancey, for respondent.

POORMAN C.

This is an appeal from an order overruling defendant's motion for a new trial. The plaintiff left with the defendant two horses, one of which the defendant agreed for a consideration to break to drive. The other horse was simply to be kept by defendant that the two might be driven together. The defendant at that time was engaged in the business of breaking and training horses. Under the terms of their agreement the horses were to be redelivered to the plaintiff on a certain day and at a certain place. The defendant did not make delivery of the horses, and some time afterwards the plaintiff brought this action in conversion to recover from the defendant their value and damages. The defense interposed was that the defendant had turned the horses into a pasture with other stock, and that they had by some means unknown to him escaped therefrom, and, though he had made diligent search, had been unable to find them. The case was tried to a jury, and a verdict rendered in favor of plaintiff.

It is claimed by defendant that the evidence is insufficient to support the verdict, for the reason that it appears from the evidence that the defendant was not guilty of any negligence in the care of the horses, and that the value of the horses as found by the jury is not sufficiently established; that the witnesses who testified relative to the value were not properly qualified. The evidence respecting the value is in conflict, and the witnesses had been, we think, sufficiently qualified to testify as to value.

Counsel for defendant is correct in his assumption that the defendant in this case was not an insurer. He was a bailee for hire. Section 2491 of the Civil Code reads: "A depositary for hire must use at least ordinary care for the preservation of the thing deposited." There is not necessarily any conflict between this section and section 2450 of the same Code. The well-known rule that a bailee for hire is charged only with ordinary care has not been changed. The general rule relative to bailments for hire is thus stated in Cumins v. Wood (Ill.) 92 Am. Dec. 189: "Where goods are placed in the hands of a bailee in good condition and are returned in a damaged state, or not at all, in an action by the bailor against the bailee the law will presume negligence on the part of the latter, and impose on him the burden of showing that he exercised such care as was required by the nature of the bailment." Funkhouser v Wagner, 62 Ill. 59; Beardslee v. Richardson (N. Y.) 25 Am. Dec. 596; Mills v. Gilbreth, 74 Am. Dec. 487; Safe Deposit Co. v. Pollock (Pa.) 27 Am. Rep. 660; Morris v. Avenue R. R. Co., 1 Daly (N. Y.) 202; 5 Cyc. Law, p. 217; Arent v. Squire, 1 Daly, 347. In the absence of a special contract with reference to the bailment, a bailee for hire is not liable so long as he uses ordinary care; but the burden is on him to show to the satisfaction of the court or jury that he has done this. The decisions in Wood v. Remick, 143 Mass. 453, 9 N.E. 831, Calland v. Nichols, 30 Neb. 532, 46 N.W. 631, and McCarthy v. Wolfe, 40 Mo. 520, are not in conflict with this rule. In those cases the bailor alleged negligence on the part of the bailee as the basis of the bailor's right to recover, and...