Taghon v. Kuhn

• Decision Date: 11 March 1993
• Docket Number: No. 920185,920185
• Citation: 497 N.W.2d 403
• Parties: Robert R. TAGHON and Donny Taghon, Plaintiffs and Appellants, v. Arnold KUHN and Mitch Kuhn, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 403

497 N.W.2d 403

Robert R. TAGHON and Donny Taghon, Plaintiffs and Appellants, v. Arnold KUHN and Mitch Kuhn, Defendants and Appellees.

Civ. No. 920185.

Supreme Court of North Dakota.

March 11, 1993.

Ray H. Walton, P.C. (argued), Kirkwood Office Towers, Bismarck, for plaintiffs and appellants.

Vogel Law Firm, Mandan, for defendants and appellees; argued by Jos. A. Vogel, Jr.

MESCHKE, Justice.

Robert Taghon and his son, Donny Taghon, appeal a judgment that dismissed their bailment claim against Arnold and Mitch Kuhn for missing cattle pastured on the Kuhn corn stubble. The Taghons also appeal an order overruling their objection to an expert witness fee allowed the Kuhns. We affirm.

The Taghons and the Kuhns operate nearby ranches west of Mandan. In the fall of 1990, they orally agreed that the Taghons would graze their cattle on 300 acres of irrigated corn stubble at the Kuhn place, and would pay the Kuhns 55 cents a head per day. They agreed that the Taghons could remove their cattle at any time and that the Taghons remained responsible for attending to any sick animals. The Kuhns agreed to maintain the fences enclosing the pasture and to keep the main gate to the pasture locked. The Taghons were offered a key to the main gate, but declined. The Taghons, however, could check on their cattle by getting a key from the Kuhns. The Taghons also agreed to share the costs of salt and minerals with the other ranchers who would be grazing cattle in the pasture on similar terms.

On October 21, 1990, the Taghons put 87 head of angus cattle into the Kuhns' pasture. During the late fall, 167 intermixed cattle grazed the stubble with only a few minor incidents. On one occasion, some of the cattle strayed from the pasture when they crossed the bordering Heart River and entered a neighbor's pasture. The Kuhns retrieved the cattle and erected an electric fence to ensure that the animals would not stray beyond the river again. On another occasion, the cattle strayed from the pasture when an electric fence was knocked down. The Kuhns retrieved the cattle and repaired the fence.

On December 17, 1990, a heavy snow storm covered the corn stubble. The Taghons then asked the Kuhns to deliver hay to their cattle, until the cattle could be transported back home. On December 27, the Taghons retrieved their cattle and discovered that 16 head were missing. An extensive search for the missing cattle ensued, but none was found.

Eleven months later, three cows turned up eight miles southwest of the Taghon ranch, and four cows were located 25-30 miles from the Taghon ranch. These cows were in fair to poor condition, all were pregnant, and their identification tags were missing. Rub marks near the cows' hip bones lead the Taghons to believe that the cattle had been stolen but moved recently by trailer.

The Taghons sued the Kuhns, alleging that a bailment for hire existed, and that the Kuhns, as bailees, were liable for the lost cattle. Alternatively, the Taghons alleged that, even if a bailment did not exist, the Kuhns were negligent in caring for the cattle, and that their negligence caused the loss.

After a trial without a jury, the trial court ruled that the arrangement was a pasture tenancy, rather than a bailment. The court reasoned that the agreement was not a bailment since the Taghons never relinquished possession, control, and dominion over their cattle. The court also found no evidence of negligence by the Kuhns.

The trial court awarded the Kuhns $3,263.25 in costs and disbursements, including $2,462.00 for the expert witness fees of Mike Berg, an auctioneer and rancher who raises registered angus and charolais cattle, operates a 1,000 head feedlot, and conducts 20 to 30 auction sales of angus cattle each year. Berg studied the registration papers and production records of the Taghons' cattle, and testified for the Kuhns about the value of the missing cattle.

The Taghons objected to the Kuhns' statement of costs and disbursements, alleging that Berg was not an expert witness, that his fees were not detailed and verified as NDRCivP 54(e) requires, and that, therefore, the trial court abused its discretion in allowing them as costs. The Kuhns' attorney filed an affidavit that Berg was retained and used as an expert witness, and attached copies of Berg's itemization of costs, time, and work. At a hearing, the Taghons conceded that Berg was an expert, but requested more time to challenge the reasonableness of his fees. After the hearing, the Kuhns' attorney filed another affidavit describing the documents given to Berg for preparation. The Taghons objected further that, because the affidavits of the Kuhns' attorney were not based on personal knowledge and contained hearsay, they were insufficient verification. The court overruled the Taghons' objection and confirmed the award of the expert fees to the Kuhns.

On appeal, the Taghons argue that the trial court's finding that a bailment did not exist is erroneous as a matter of law. The Taghons also contend that the trial court abused its discretion in awarding the expert fees to the Kuhns.

In determining that this agreement created a landlord-tenant relationship, not a bailment, the trial court, quoting F-M Potatoes, Inc. v. Suda, 259 N.W.2d 487, 490 (N.D.1977) (quoting Great Plains Supply Co. v. Mobil Oil Co., 172 N.W.2d 241, 245 (N.D.1969)), reasoned:

[T]he test is whether the person leaving the property has made such a delivery to the owner of the premises as to amount to a relinquishment, for a time, of his exclusive possession, control, and dominion over the property, so that the latter can exclude, within the limits of the agreement, the possession of all others. If he has, the general rule is that the transaction is a bailment. If there is no such delivery and relinquishment of exclusive possession, and control and dominion over the goods is dependent in no degree upon the cooperation of the owner of the premises, and access to the goods is in nowise subject to the latter's control, it is generally held that the owner of the goods is a tenant or lessee of the space upon the premises where they are left.

The trial court ruled that the Kuhns did not have the degree of control over the cattle necessary for a bailment. The trial court found that the Taghons had unrestricted access to the pasture, could remove their cattle at any time, remained responsible for any sick animals, and had to request the Kuhns to feed their cattle when the snowstorm made grazing impossible. Additionally, the court found that, under the custom and usage of like agreements in that vicinity, the risk of loss remained with the Taghons. Consequently, the court determined that the oral agreement was for the rental of pasture land, rather than a bailment for the care of cattle.

An agreement to pasture, feed, and care for cattle is a bailment if the bailee has the custody and control of the cattle. Bowers v. Western Livestock Company, 103 N.W.2d 109 (N.D.1960); Gunderson v. Johnson, 132 N.W.2d 700 (N.D.1965). See also Lee v. Johnson, 154 N.W.2d 382 (N.D.1967) (injury to a horse being towed in a horse trailer). When a bailee for hire fails to return goods, there is a presumption that the bailee was negligent. McKenzie v. Hanson, 143 N.W.2d 697 (N.D.1966); Great Plains Supply Co. v. Mobil Oil Co., 172 N.W.2d 241 (N.D.1969). Compare Tweeten v. Miller, 477 N.W.2d 822 (N.D.1991) (lessee not negligent in caring for cows). A bailment depends on the degree of control and possession.

The Taghons contend that the Kuhns exercised sufficient control over the cattle to create a bailment as a matter of law....