Stone v. Case

• Decision Date: 14 May 1912
• Docket Number: Case Number: 1650
• Parties: STONE v. CASE.
• Court: Oklahoma Supreme Court

1912 OK 428

124 P. 960

34 Okla. 5

STONE v. CASE.

Case Number: 1650

Supreme Court of Oklahoma

Decided: May 14, 1912

Syllabus

¶0 1. BAILMENT--Action Between Parties--Burden of Proof. In an action against a bailee for loss of property, where it is alleged that the loss was occasioned by a fire, and that such fire was caused by the negligence of bailee, it is error to instruct the jury that the burden is upon the defendant to prove that he was not negligent. In such case the burden is upon the plaintiff to prove a prima facie case; and such prima facie case must outweigh an affirmative defense, if such defense is interposed, before plaintiff is entitled to recover.

2.ACTION--Joinder of Causes--" Cause of Action"--"Subject of Action"--"Transaction." In section 5623 of the statute (Comp. Laws 1909), which provides that several causes of action may be united in the same petition, where they arise out of the same transaction, or transactions connected with the same subject of action, the term "cause of action" means a redressible wrong. Its elements being the wrong and the relief provided. The "subject of action" is a primary right and its infringement. The term "transaction" is used in the first clause with reference to, and expressive of, all the acts, or groups of related acts, which go to make up one entire project, system, or deal, referred to as a "transaction," and in the latter clause it is used to include and encompass only such acts, or groups of acts, as in themselves constitute separate, redressible wrongs; and such wrongs (transactions) are connected with the same "subject of action" whenever they affect, grow out of, or constitute separate infringements of, the same, primary right.

3.SAME--Single and Entire Cause of Action. The petition herein alleges that the loss of the piano, valued at $ 400. was caused by defendant's negligence in failing to have the piano insured for this amount, as he had agreed to do, and by his negligence, which caused the fire in which the piano was destroyed, and asked for judgment for $ 400. Held, there was but one cause of action stated, and therefore no misjoinder.

Duke Stone and Leslie Maxey, for plaintiff in error.

J. F. McKeel and Bledsoe & Little, for defendant in error.

HARRISON, C.

¶1 In considering these objections, we will first take up the instructions of the court. After stating the issues to the jury, the court, in paragraph 9 of his charge, says:

"You are instructed, gentlemen of the jury, that the burden of proof is upon the defendant to show that he exercised reasonable care in the protection of the piano, and that the same was not destroyed through his ordinary negligence, or the ordinary negligence of his servants, agents, or employees, while acting within the scope of their employment."

¶2 This instruction places a greater burden upon the defendant than is placed upon him by the settled rule of law in such cases. There is a universal and unvarying rule of law that the burden is upon the plaintiff to allege and establish the facts upon which he relies for recovery; to allege and establish such facts as will entitle him to a recovery. The underlying principle in which it is planted, and from which it has had its growth, constitutes one of the pillars of civil jurisprudence. It is true that in some classes of actions, as in an action against a bailee for hire--and the case at bar is governed by the law on bailments--there has been a seeming variation or exception to the rule; but in such cases, while the rule appears to be changed, and while there seems to be a modification or exception, yet, when the constituent facts of the entire case are separated and analyzed and the governing principle discovered, it will be observed that the rule is unchanged. For example, where a bailee fails to deliver the property, or where the bailor makes demand for a return of the property and the bailee fails or refuses to return or deliver the same, in such case, the law presumes a liability on the part of the bailee--a presumption from which he must free himself. But such presumption arises from the fact constituting a prima facie case against him, and the burden is upon the bailor to establish such facts; that is, he must show that there is a bailment, that he is the bailor, must show what the property consists of, that he is entitled to return of same, and that the bailee refuses to make such return. When this is done, a prima facie case is made, and the law presumes a liability on the part of the bailee. Then, if he has a defense which relieves him of liability, the burden is upon him to establish such defense; that is, the law must be satisfied of the existence of such facts as will relieve him of liability, and proof of such facts rests with him. The law must be convinced by his efforts that a defense exists. The burden of proving such issue is upon him. Otherwise the presumption arising from a prima facie case fixes his liability. But, in such case, the rule placing the burden upon the plaintiff to prove the facts entitling him to recover, is unchanged. It merely admits the application, or rather invokes the aid of, another well-settled rule that an affirmative defense must be proved by the person who asserts it. As, in a suit on a promissory note, where the maker sets up the defense of fraud, the burden is upon him to prove such fraud. When, however, such defense is interposed and its existence proven, the defendant has discharged himself of the burden of procedure, and the burden of the entire case is upon the plaintiff. It is upon him, from the whole case and from all the facts and circumstances, to prove his right of recovery. In other words, his prima facie case must outweigh the affirmative defense. The instruction herein complained of, either standing alone or considered in connection with the entire charge, has the effect of arbitrarily assuming a prima facie case and a consequent liability on the part of defendant, and of placing the burden upon him to prove he was not liable. This was error. It should have been left to the jury to determine from the evidence whether a prima facie case had been made, and whether from all the facts and circumstances the defendant was liable. The effect of this instruction is still more harmful when considered under the facts alleged in the second paragraph of the petition. In the second count, if a cause of action is stated at all, the plaintiff's right of recovery is predicated solely upon defendant's negligence. It states a condition of facts which relieves defendant of the presumption of negligence ordinarily arising from a prima facie case of failure to return the property. It alleges that the loss was caused by fire, and that the fire was caused by defendant's negligence. In alleging a loss by fire, the defendant was relieved of the presumption of negligence, and in alleging that the fire was caused by negligence, plaintiff assumed the burden of proving such negligence. Her right of recovery is based upon defendant's negligence. She must prove this negligence in order to fix a liability on him. For, under the great weight of authority, and under the light of reason, where the loss of bailor's property is occasioned by fire, robbery, burglary, or theft, or by any means which would ordinarily and reasonably seem to be unavoidable, the bailee is relieved of the presumption of negligence in the loss, and of the consequent burden of interposing an affirmative defense. This doctrine is followed in the following authorities:

¶3 In the case of Wilson v. Southern City R. Co., 62 Cal. 164, which was an action against a warehouseman for damage done to a quantity of wool, which had been stored in the warehouse, Mr. Justice McKee of the Supreme Court of California, in rendering the opinion of the court, says:

"A prima facie case of negligence is made out against a warehouseman, who refuses to deliver property stored with him, upon proof of demand and refusal. Upon such proof alone the burden is on him to account for the property; otherwise he shall be deemed to have converted it to his own use. But if it appears that the property, when demanded, was consumed by fire, the burden of proof is then on the bailor to show that the fire was the result of the negligence of the warehouseman. Harris v. Packwood, 3 Taunt. 264; Beardslee v. Richardson, 11 Wend. [N.Y.] 26 ; Browne v. Johnson, 29 Tex. 40; Lamb v. Camden & Amboy R. Co. [46 N.Y. 271, 7 Am. Rep. 327]; [Jackson v. Sac. Val. R. Co.]. 23 Cal. 269. The negligence of the appellant, as the proximate cause of the loss of the property by fire, thus became the essential fact to recovery; and the burden of proof was upon the plaintiff in the action. It was incumbent on him to prove that the defendant had, by some act of omission, violated some duty, by reason of which the fire originated; or that some negligence or want of care, such as a prudent man would take under similar circumstances of his own property, caused or permitted or contributed to cause or permit the fire by which the property was destroyed."

¶4 In the case of James v. Orrell, 68 Ark. 287, 57 S.W. 931, 82 Am. St. Rep. 293, which was an action to recover damages for certain cotton, some of which had been stolen and some destroyed by fire, Mr. Justice Hughes, in delivering the opinion of the Supreme Court of Arkansas, says:

"There was prejudicial error in the court's instruction to the jury as to the burden of proof. It told the jury that, 'the loss of the cotton being admitted, the burden is upon the defendant to show that such loss was not caused by the negligence of him or his servants; and, unless you find by a preponderance of the evidence the loss was not caused by such negligence, your verdict will be for the plaintiffs.' This is error for which the judgment must be reversed. Judge Story, in his work on Bailments (8th Ed.) sec. 210, says: 'With certain exceptions, which will hereafter be taken notice of, as to innkeepers

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