Soby Const., Inc. v. Skjonsby Truck Line, Inc.

Decision Date01 February 1979
Docket NumberNo. 9534,9534
Citation275 N.W.2d 336
PartiesSOBY CONSTRUCTION, INC., Plaintiff/Appellant, v. SKJONSBY TRUCK LINE, INC., Defendant, Third-Party Plaintiff and Appellee, v. NEW HAMPSHIRE INSURANCE COMPANY, Third-Party Defendant and Appellee. Civ.
CourtNorth Dakota Supreme Court

Johnson, Milloy, Johnson, Stokes & Robinson, Wahpeton, for plaintiff and appellant; argued by A. Warren Stokes, Wahpeton.

Nilles, Hansen, Selbo, Magill & Davies, Ltd., Fargo, for defendant, third-party plaintiff and appellee; argued by Stephen W. Plambeck, Fargo.

Conmy, Feste & Bossart, Ltd., Fargo, for third-party defendant and appellee; appearance by Wickham Corwin, Fargo.

PAULSON, Justice.

This is an appeal by the plaintiff, Soby Construction, Inc. (hereinafter Soby), from a judgment entered in the Cass County District Court granting the motion of the defendant, Skjonsby Truck Line, Inc. (hereinafter Skjonsby) and the third-party defendant, New Hampshire Insurance Company, to dismiss Soby's complaint with prejudice. Soby commenced this action against Skjonsby after a Caterpillar D9 tractor (hereinafter D9 tractor) owned by Soby was damaged while being transported by Skjonsby, pursuant to an oral contract between the parties. Skjonsby subsequently commenced a third-party action against New Hampshire Insurance Company, Soby's insurer. At the close of Soby's case, the attorneys for Skjonsby and the New Hampshire Insurance Company moved that Soby's complaint be dismissed. The district court ruled that Soby had failed to prove the violation of any duty owed by Skjonsby to Soby, and the district court dismissed Soby's complaint. We affirm.

Soby is engaged in the heavy construction business. Skjonsby is engaged in the business of transporting goods, materials, and equipment for hire. On February 28, 1973, Soby contracted with Skjonsby to have Skjonsby transport a D9 tractor from an area west of Wahpeton, North Dakota, to Big Stone City, South Dakota. At the commencement of the trial, the parties stipulated as follows:

"On February 28th, 1973 Gary Hendrickson, the employee of Skjonsby Truck Lines, drove the Soby Construction caterpillar onto the back of a lowboy trailer and tied it down with four chains and two binders, two of each in front and two in back. He proceeded southeast about six miles and because of the slippery surface slid into the ditch at an angle causing the D9 tractor to break the chains and to roll over into the ditch causing damage to some extent to the D9 caterpillar."

Soby, in its complaint, sets forth the following pertinent allegations:

"4. That defendant did carelessly and improperly conduct the loading of said caterpillar D9 tractor and/or was careless and negligent in the operation of the transporting vehicle and that by defendant's negligence and improper conduct, the caterpillar D9 tractor was damaged and rendered useless to your plaintiff.

"5. That because of said negligence of the defendant, plaintiff's value of his tractor diminished . . . ."

Skjonsby, in its answer, denied that it had been negligent and alleged that the accident which damaged Soby's D9 tractor was proximately caused by Soby's negligence in constructing and maintaining the road on which the accident occurred. Skjonsby further alleged that it had paid Soby's insurer, New Hampshire Insurance Company, $5,040.68 in full payment of the claim, and that New Hampshire Insurance Company had fully compensated Soby, its insured.

No evidence of Skjonsby's alleged negligence was entered in the record other than the oral stipulation entered into between the parties. At the close of Soby's case, Skjonsby's motion for a dismissal with prejudice was granted by the district court on the ground that Soby had not met its burden of proving that Skjonsby's negligence was the proximate cause of the damage to the D9 tractor. Skjonsby's third-party complaint against New Hampshire Insurance Company was also dismissed with prejudice.

The sole issue raised on appeal is:

Did the district court err in granting Skjonsby's motion for a dismissal with prejudice?

In a negligence action by a bailor against a bailee for damage to the bailed goods, the bailor has the burden of proving negligence and all other essential elements of its cause of action. McKenzie v. Hanson, 143 N.W.2d 697 (N.D.1966); Farmers Home Mut. Ins. Co. v. Grand Forks Implement Co., 79 N.D. 177, 55 N.W.2d 315 (1952). The bailor may allege and prove specific acts of negligence by the bailee. Alternatively, the bailor may create a presumption of negligence by establishing certain essential elements of the bailment and the burden of rebutting the presumption of negligence is shifted to the bailee.

In McKenzie, supra 143 N.W.2d at 704, this court adopted the modern rule which allows a bailor to create a presumption of negligence by proving that a bailment for hire existed and that the bailee failed to deliver the bailed goods. This rule was followed in Lee v. Johnson, 154 N.W.2d 382 (N.D.1967), a case in which property of the bailor was damaged while in the control of the bailee under a bailment for mutual benefit. In F-M Potatoes, Inc. v. Suda, 259 N.W.2d 487, 491 (N.D.1977), we reaffirmed the rule allowing a presumption of negligence in bailment cases, but held that the presumption is only applicable in cases where the bailed goods are nonperishable.

In summary, we have held that a bailor may create a presumption of negligence by establishing that a bailment existed, that the bailor delivered to the bailee nonperishable bailed goods which would not ordinarily be damaged without negligence, and that the bailee either failed to redeliver the goods or redelivered the goods in a damaged condition. See Lakehead Constructors, Inc. v. Roger Sheehy Co., 304 Minn. 175, 229 N.W.2d 514 (1975); Columbus Jack Corp. v. Swedish Crucible Steel, 393 Mich. 478, 227 N.W.2d 506 (1975); Hawkeye Specialty Co. v. Bendix Corporation, 160 N.W.2d 341 (Iowa 1968); Jones v. O'Bryon, 254 Iowa 31, 116 N.W.2d 461 (1962); Buckey v. Indianhead Truck Line, 234 Minn. 379, 48 N.W.2d 534 (1951); and Allen v. Line, 72 S.D. 392, 34 N.W.2d 835 (1948).

After the bailor has established a presumption of negligence against the bailee by credible evidence, the bailee must introduce evidence to rebut the presumption. The effect of a presumption is controlled by Rule 301(a) of the North Dakota Rules of Evidence, which was adopted after McKenzie, supra, and Lee, supra, had been decided. Therefore, the determinations in those cases regarding the effect of a presumption have been superseded.

Rule 301(a), N.D.R.Evid., provides:


"(a) Effect. In all civil actions and proceedings not otherwise provided for by statute or by these rules, if facts giving rise to a presumption are established by credible evidence, the presumption substitutes for evidence of the existence of the fact presumed until the trier of fact finds from credible evidence that the fact presumed does not exist, in which event the presumption is rebutted and ceases to operate. A party against whom a presumption is directed has the burden of proving that the nonexistence of the presumed fact is more probable than its existence."

Once a bailor has produced credible evidence to establish a presumption that the bailee was negligent, the presumption remains in effect until the bailee proves by credible evidence that the fact presumed does not exist. See F-M Potatoes, Inc., supra 259 N.W.2d at 491; Bauer v. Graner, 266 N.W.2d 88, 92-93 (N.D.1978).

In the present case, Soby alleged that Skjonsby had committed certain specific acts of negligence. Soby's complaint alleges that Skjonsby "did carelessly and improperly conduct the loading of said caterpillar D9 tractor and/or was careless and negligent in the operation of the transporting vehicle", which resulted in damage to the D9 tractor. At trial, Soby apparently based its proof on a presumption of negligence arising from a bailor-bailee relationship rather than on the specific acts of negligence alleged in its complaint. We must determine whether or not Soby was entitled to a presumption of negligence, even though its complaint alleged specific acts of negligence and, if so, whether or not it presented sufficient credible evidence to give rise to the presumption.

As a general rule in bailment or carrier cases, if the bailor alleges specific acts of negligence he must affirmatively prove negligence and cannot rely upon the bailor-bailee presumption of negligence. 8 C.J.S. Bailments § 50; 13 C.J.S. Carriers § 2531/2. In Thrasher v. Greenlease-Ledterman, Inc.,208 Okl. 507, 257 P.2d 795, 798 (1953), the Oklahoma Supreme Court determined that:

" . . . where the bailor contends . . . that the damage resulted from the negligence of the bailee, plaintiff (bailor) could not make out a prima facie case by proof that he delivered his car to defendant for repairs and that it was not returned upon his demand. In other words, If plaintiff alleges negligence he does not have a 'presumption' in his favor, but he must prove the case upon the tort alleged." (Emphasis added.)

A similar view was adopted by the Colorado Supreme Court in McKinley v. Denver & R. G. W. R. Co., 119 Colo. 203, 201 P.2d 905, 906 (1949), which quoted with approval from Atlantic Coast Line R. Co. v. Georgia Packing Co., 164 F.2d 1, 3 (5th Cir. 1947):

"Where it appears only that goods were delivered to a carrier in good condition and that the carrier delivered them to the consignee in damaged condition, the shipper has made out a prima facie case of negligence against the carrier who must then prove the exercise by it of proper care. But where the shipper alleges specific acts of negligence, the burden of proving such acts is upon him." (Emphasis added.)

Accord Roadway Express v. Gordon, 277 P.2d 146 (Okl.1954); Burt v. Blackfoot Motor Supply Co., 67 Idaho 548, 186 P.2d 498 (1947); and Delaware Dredging Co....

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