David v. Lose

218 N.E.2d 442, 7 Ohio St. 2d 97, 36 Ohio Op. 2d 81, 1966 Ohio LEXIS 322

• Court: Ohio Supreme Court
• Decided: July 6, 1966
• Docket: No. 39923
• Status: Published

Opinions

Herbert, J.

When the plaintiff entrusted his mare to the defendants for breeding purposes and paid for this service, a bailment for hire was created. See 7 Ohio Jurisprudence 2d, Bailments, Sections 3 and 6. The bailee for hire is obligated by law to exercise ordinary care in the safekeeping of the bail- or’s property, e. g., Hotels Statler Co., Inc., v. Safier (1921), 103 Ohio St. 638. The bailee also promises to return the property undamaged upon the termination of the bailment, 8 American Jurisprudence 2d, Bailments, Section 164.

Therefore, the bailor can sue the bailee for breach of either duty, the duty of redelivery or the duty of exercising ordinary care. This was recognized in Agricultural Ins. Co. v. Constantine (1944), 144 Ohio St. 275. Paragraph two of the syllabus reads as follows:

“Where a bailor delivers property to a bailee and such bailee fails to redeliver the bailed property upon legal demand therefor, a cause of action, either ex contractu or ex delicto, accrues in favor of the bailor.”

In the case at bar, the bailor’s petition states a cause of action in contract for breach of the bailees’ duty to return the bailed property undamaged. In order to establish a prima facie case, the bailor need prove only (1) the contract of bailment, (2) delivery of the bailed property to the bailees and (3) failure of the bailees to redeliver the bailed property undamaged at the termination of the bailment.

In order to escape liability, the bailees must then assert and prove some affirmative defense. The bailees in their answer affirmatively plead that “they exercised that degree of prudent care necessary to safely confine and keep said mare until the acts of performance contemplated by the contract were fulfilled.” The bailees thus assert that the mare was damaged through no fault of their own. In short, they assert non-negligence as an affirmative defense. The law recognizes this as a legal excuse for failure to redeliver the bailed property undamaged, 8 American Jurisprudence 2d, Bailments, Section 177. However, the burden of proof on the issue of the bailees’ conduct remains with the bailees throughout the trial, Hanlon v. J. E. Miller Transfer & Storage Co. (1948), 149 Ohio. St. 387, at 389 and 391; 8 American Jurisprudence 2d, Bailments, Section 311; 7 Ohio Jurisprudence 2d, Bailments, Section 42. The law on the burden of proof on the issue of negligence in contract cases should be contrasted with that in negligence cases where the bailor, even when proceeding on the basis of res ipsa loquitur, has the burden of proof on the issue of negligence throughout the trial, 8 American Jurisprudence 2d, Bailments, Section 310; 7 Ohio Jurisprudence 2d, Bailments, Section 41.

The rule in contract cases is stated in the fourth paragraph of the syllabus of Agrcultural Ins. Co. v. Constantine, supra, as follows:

“In an action by a bailor against a bailee based upon a breach of the contract of bailment, where the bailor proves delivery of the bailed property and the failure of the bailee to redeliver upon legal demand therefor, a prima facie case of want of due care is thereby established and the burden of going forward with the evidence shifts to the bailee to explain his failure to redeliver.”

The Court of Appeals failed to draw the distinction between the tort and contract actions available to a bailor and so confused the two that it erroneously applied the doctrine of res ipsa loquitur to this action in contract. Although such confusion is not without precedent, it should not be encouraged.

The Court of Appeals failed to recognize that the question is not whether the plaintiff has established negligence but whether the defendants have established a legal excuse for breach of the contract. As it was stated in 8 American Jurisprudence 2d, Bailments, Section 166: “So far as the particular duty under discussion [i. e., the bailee’s duty of redelivery] is concerned, it is erroneous to say that a bailee is liable for negligence. He is liable for not delivering the subject of the bailment, but is excused if it has been lost without fault or want of care on his part.”

In the case at bar, no legal excuse has been shown. The trial court’s statement of facts — which is not disputed by either party — indicates that the stall was properly made, and that it was not the customary practice to station an attendant at all times to watch over the horses. No one knows how the injury to the mare occurred. Even if under the circumstances it is consistent with reasonable care for a bailee to put a mare in such a stall and leave her unguarded for a short duration, proof of those facts is not proof of a legal excuse because it is impossible to determine whether such reasonable conduct is at all relevant to how the injury occurred.

Thus, once it is known how the damage to the bailed property occurred, it is incumbent on the bailee to show that he acted reasonably in that regard. Cf. Agricultural Ins. Co. v. Constantine, supra. But where, as here, the bailee cannot show how the damage occurred, he must, in order to escape liability, affirmatively prove that he took reasonable precautions under the circumstances to prevent every possibility of damage from actually occurring.

Since the bailees failed to meet that burden and left the question of their conduct in a state of conjecture, the judgment of the trial court is affirmed, and that of the Court of Appeals is reversed.

Judgment reversed.

Taft, C. J., Zimmerman, Matthias, O’Neill, Schneider and Brown, JJ., concur.