Tweeten v. Miller, 910061

Decision Date20 November 1991
Docket NumberNo. 910061,910061
Citation477 N.W.2d 822
CourtNorth Dakota Supreme Court
PartiesHarold TWEETEN, Plaintiff and Appellee, v. John A. MILLER and Lorraine Miller, Defendants and Appellants. Civ.

Vogel Law Firm, Mandan, for plaintiff and appellee, argued by Joseph A. Vogel, Jr., Mandan.

Lucas and Smith, Bismarck, for defendants and appellants, argued by Sheldon A. Smith, Bismarck.

GIERKE, Justice.

Defendant, John A. Miller (Miller), appeals from the district court judgment which held that the plaintiff, Harold Tweeten (Tweeten), should receive 55% of the proceeds from the sale of calves which he raised pursuant to a Livestock Lease Agreement. We affirm.

Miller's cattle operation was severely affected by the drought in 1987 and 1988. Miller placed an advertisement in a local newspaper to lease his cattle on a share basis with someone who had adequate pasture and hay. This ad was answered by Tweeten. Miller toured Tweeten's farm and found it to be adequate. On November 22, 1988, Tweeten entered into a lease agreement with Miller. The agreement required that Tweeten supply the pasture, feed, hays, grain, mineral, cake, salt and vaccine and any other things necessary for the care of the cattle. Miller was to supply 75 Registered Angus and crossbred commercial cows to Tweeten to care for. The proceeds from the calf production was to be divided, 45% to Miller and 55% to Tweeten. The contract required Miller to furnish one Registered bull. Miller reserved the right to check on the cattle upon notification of Tweeten. Death loss of cows was to be the responsibility of Miller unless such death was due to the total negligence of Tweeten.

On September 27, 1989, fifty-six calves were sold at Kist Livestock in Mandan, North Dakota. A check was issued to Tweeten, Miller and Norwest Bank 1 in the amount of $19,253.92. Miller endorsed the check but Norwest Bank, on instructions from Miller, refused to pay Tweeten. Tweeten sought his share of the proceeds pursuant to the agreement, and this litigation ensued.

Miller contends that due to Tweeten's negligent treatment of the cattle he was damaged. Miller claims that the negligent treatment resulted in the loss of cattle and contributed to the poor quality of calves that were produced. Miller therefore counterclaimed for damages on the basis of Tweeten's negligence.

During the time that Tweeten cared for the herd, nine cows died and nineteen calves 2 were lost. Testimony at the trial established that some of the remaining calves were underweight when they were sold in September. The court recognized that the death losses were higher than normal but found there was no evidence presented that Tweeten was negligent in the treatment or care of the cattle and calves.

The court also found that if Miller had been dissatisfied with the treatment he should have taken more care to monitor the cattle and insisted on different treatment. Therefore, the court granted 55% of the money held at Norwest Bank to the plaintiff, Tweeten.

On appeal, Miller alleges two errors. First, Miller claims that the trial court erred when it found that Tweeten was not negligent in the care of the cattle. Second, Miller contends that the court erred when it found that Miller had a duty to ensure that Tweeten was fulfilling his obligation under the contract.

To support his first argument, Miller argues that the trial court erred when it found that Tweeten was not negligent in the care of the cattle. Miller cites a Utah case which holds that when cattle are delivered in good condition, a presumption arises against the bailee when cattle are lost. Baker v. Hansen, 666 P.2d 315 (Utah 1983). In such a case, it would then be the responsibility of the bailee to come forward with evidence of no negligence.

Under North Dakota law, ordinary care is required by someone who has temporary possession of the personal property of another under a contract. See Section 47-15-04, N.D.C.C. North Dakota law also provides that the hirer of personal property must repair all deteriorations or injuries thereto occasioned by his ordinary or gross negligence. Section 47-15-07, N.D.C.C.

We need not determine whether to adopt the presumption set forth in Baker, supra, because the facts of this case clearly distinguish it from Baker.

The contract in this case specifies that, "Death loss on cows is the responsibility of Mr. Miller, unless it was due to total negligence in Mr. Tweeten's part, then he would assume responsibility." This assumption of the loss by Mr. Miller indicates that only "total negligence" on the part of Tweeten would render him liable for the death of any cows. There was also a showing that at least some of the cattle were "gummers" (toothless cows) and thus not in good condition at the time of delivery. Tweeten also offered substantial evidence as to the adequacy of the care of the cattle. In Baker, supra, the good condition of the cattle upon delivery was not disputed and there was a total failure to present any evidence that would account for the loss of the cattle.

Miller also argues that under the doctrine of res ipsa loquitur, the burden to prove that the loss of cows was not caused by the bailee's negligence, falls upon the bailee, citing Wood v. Gable, 656 S.W.2d 623 (Tex.App. 2nd Dist.1983).

Res ipsa loquitur requires certain facts to be proven; "(1) the accident was one which does not ordinarily occur in the absence of negligence; (2) the instrumentality which caused the plaintiff's injury was in the exclusive control of the defendant; and (3) there was no voluntary action or contribution on the part of the plaintiff." Victory Park Apartments, Inc. v. Axelson, 367 N.W.2d 155, 159 (N.D.1985). None of the three requirements of res ipsa loquitur is met by the facts in this case. Therefore, the...

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    ...¶ 7, 835 N.W.2d 798 (quotation marks and citations omitted). A district court's findings are "presumptively correct." Tweeten v. Miller, 477 N.W.2d 822, 824(N.D. 1991). A "court's choice between two permissible views of the weight of the evidence is not clearly erroneous, and simply because......
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    ...Fladeland v. Gudbranson, 2004 ND 118, ¶ 7, 681 N.W.2d 431). A trial court's findings are “presumptively correct.” Tweeten v. Miller, 477 N.W.2d 822, 824 (N.D.1991). [¶ 13] In applying the clearly erroneous standard of review, we will not substitute our judgment for the trial court's judgmen......
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    ...¶ 7, 835 N.W.2d 798 (quotation marks and citations omitted). A district court's findings are “presumptively correct.” Tweeten v. Miller, 477 N.W.2d 822, 824 (N.D.1991). A “court's choice between two permissible views of the weight of the evidence is not clearly erroneous, and simply because......
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