| Mo. Ct. App. | May 18, 1914
This suit originated in a justice court upon a statement which alleged that “plaintiff delivered to defendant a suit of clothes, the property of this plaintiff, of the value of eighty-five dollars ($85), for the purpose of being cleaned and pressed by defendant, which said suit defendant agreed to return to plaintiff when said work was completed; that defendant received said suit upon the agreement and for the purpose aforesaid, but has failed to perform said agreement on its part, and so carelessly and negligently kept said suit, that while it was in the possession of defendant for the purpose as aforesaid, it was lost, destroyed or stolen, to plaintiff’s damage in the sum of eighty-five dollars.’? A trial in the circuit court resulted in a verdict and judgment for plaintiff and defendant appealed.
Plaintiff proved at the trial that he delivered the suit to defendant for cleaning and pressing and that defendant failed to return it and attempted to excuse its failure on the ground that a burglar had entered the shop and stolen the suit.
Defendant admitted the bailment and the loss of the property and introduced evidence tending to show that a burglar had entered the shop one night through a closet window . and had stolen the suit and other articles of clothing. The employee of defendant who closed the store the night of the theft testified to having locked the doors and windows. The examination of the premises which immediately followed the discovery of the loss disclosed that the lock of one of the windows was broken and that the window had been pried open.
The only instruction given at the request of plaintiff was on the measure of damages. On behalf of ■defendant the jury were instructed “that if you find
Before this instruction was asked the court refused to give a demurrer to the evidence and this ruling is assigned as the principal error committed ■against defendant at the trial.
The duty defendant owed plaintiff was that of a bailee for hire. The gist of a cause of action inuring to a bailor for the inadvertent loss of the property during the bailment is negligence of the bailee and in an action for such loss the burden is on the plaintiff to show that such negligence was the cause of the loss. But to satisfy this burden plaintiff was required only to plead and prove the fact of a bailment and the failure or refusal of defendant to return the property on proper and timely demand. He was not required to plead and prove specific acts of negligence in order to make out a prima-facie case and the mere allegation of negligence in his statement did not add another element to the cause he was required to prove. As is said in Freeman v. Foreman, 141 Mo. App. l. c. 364: “ There is one rule, however, which in a proper case for its application, practically places the plaintiff in a bailment case, upon the same footing, as far as proof is concerned, as he who brings an ordinary action upon a bailment contract without any allegation of negligence, and that is, that in all negligence cases where the charge of negligence is a general one, and the plaintiff can show that the loss or injury occurred under such circumstances that it may be reasonably inferred from the fact that injury did occur, that if ordinary care had been used by the party charged the injury would not have resulted, he thereby makes a
Since the bailor is generally at a disadvantage in obtaining accurate information of the cause of the loss or damage the law considers he makes out a case for the application of the rule of res ipsa loquitur by proof of the bailment and the failure of the bailee to deliver the property on proper demand. [Levi v. Railroad, 157 Mo. App. l. c. 543, and cases cited.] With the prima facie case conceded, the burden devolved on defendant to excuse its failure to deliver the property by proof that the loss was due to a cause consistent with the exercise of reasonable care.
“When the loss of the goods is established, the burden of proof devolves upon the carrier (the bailee) to show that it was occasioned by some act which is recognized as an exemption.” [Levi v. Railroad, supra.]
The evidence that the loss was due to burglary .and theft tended to exonerate defendant but was of no .greater evidentiary force than was required to raise an issue of fact for the jury. We find the evidence ns a whole supports a reasonable inference that the loss was not due to the excusatory cause assigned by defendant and further that if the property was stolen by a burglar the theft was a natural consequence of negligence of defendant in conducting its business. 'The demurrer to the evidence was properly overruled.
The objection to the action of the court in refusing an instruction asked by defendant on the burden of proof is decided against defendant on authority of the rule applied in Price v. Railway Company, 220 Mo, l. c. 463. The judgment is affirmed.-