Cornia v. Wilcox, 898 P.2d 1379

Cornia v. Wilcox

898 P.2d 1379

Utah

1995

Check Treatment

*1 likely reasonably that the error affected DAMAGES it is “In other proceedings. of the the outcome conclude, Because we as did the court of reversal, words, require an ‘[f]or error appeals, City that Wadsworth and the did not of a different outcome must be likelihood contract, binding enter into a we need not sufficiently high to undermine confidence ” examine whether Wadsworth is entitled to v. Id. at 958 State (quoting the verdict.’ profits recover lost for breach of contract. 1987)). Knight, Affirmed. conclude, did court of We as' if trial errone

appeals, that even court ZIMMERMAN, C.J., STEWART, ously publicatiоn article excluded trade C.J., Associate and DURHAM and evidence, worksheet from and the bid RUSSON, JJ., concur. were harmless. Wadsworth ar exclusions gues publication that the trade article “has

probative value to show the conduct City surrounding facts this case and the publication such that the trade an

nounced an award to Wadsworth. It is also

probative of Wadsworth’s reasonable under

standing Pro that it had been awarded the However,

ject.” significance of this arti

cle as it relates to the reasonable under addition,.

standing slight. ample

the court admitted evidence of the

parties’ binding conduct show whether a formed, testimony including

contract was officials, City testimony Mr. from from CORNIA, Orson Morrell Weston and Sons Wadsworth, January minutes from the Ranching Company, Inc., corpo- a Utah meeting, and from the letters Wadsworth Weston, ration, Plaintiffs, and Dennis city attorney. All of the evidеnce admitted Appellees, Cross-Appellants, by the court was much more relevant with v. regard parties’ conduct than the trade article, publication highly and we find it un WILCOX, Defendant, Appellant, D. James likely that admission of the article would Cross-Appellee. have affected the outcome of the trial. No. 930608. also find that the trial court’s Supreme Court of Utah.

exclusion of the bid worksheet was harmless. simply The bid worksheet would have dem June ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍1995. onstrated that Mr. Wadsworth concluded $100,000 by that he could reduce the bid

deleting skylight canopy. How

ever, city the admitted testimonies of officials sufficiently Mr.

and Wadsworth demonstrat point.

ed that Mr. refusal to Wadsworth’s

embody that bid reduction in the written

contract, nоt his refusal to demonstrate that afterward, price prevent

he could reduce the accepting City’s

ed Wadsworth trial

counteroffer. we find that could

court did not exclude evidence that

have error. resulted harmful *3 Echard, Ogden, plaintiffs.

Robert A. for Hoffman, City, Jeremy Salt Lake for de- fendant.

HOWE, Justice: brought action Plaintiff cattle owners this damage cattle that the loss of and to their grazed property. A re- on defendant’s plaintiffs, award- turned a verdict favor of $110,019.96 ing damages. ap- Defendant peals. cross-appeal the trial court’s Plaintiffs prejudgment interest. refusal to award during I. that 16 cows died the winter but that FACTS all of the other cattle had been accounted for’ light recite the facts favorable good em- and were condition. Wilcox’s Johnson, v. verdict. State ployee grass testified that the and water on (Utah 1989); v. Aetna Andreason good, the summer that he had no Co., 171, 173 Casualty & Sur. kept problems with the and that he 1988, plaintiffs Ct.App.1993). In late Orson May track of them. Wilcox billed sepa into Cornia Dennis Weston entered (cow calf) pairs for 480 of cattle agreements pasture rate with defendant understanding with the the final ac- approxi James Wilcox for the “total care” counting would occur when the cattle were mately year. 500 head of cattle for one Ac returned. *4 cording agreements, “Total in to the care representatives Plaintiffs and their came salt, water, feed, range cludes ... and trail brand, onto the several times to vacci- ing of the cattle. It does not include vac nate, agreed by and move the as cattle medicine, cines, trucking.” parties or The occasions, plaintiffs parties. On a number of agreed right plaintiffs that would have many expressed concern that of the cows and property pur enter Wilcox’s for these latter time, appeared missing, calves to be but each poses branding and to assist in the cattle. Wilcox assured them that the cattle were all gave plaintiffs keys gates Wilcox of his worry. there and there was no need to property requested they but that call and let they coming. him know when were The 1989, following expiration In of November agreed parties also that Wilcox would not be pasture agreements, the cattle were for the death of there hable but corral, up, placed into a rounded and loaded agreement was no as to cattle ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍not otherwise plaintiffs’ Many into trucks. of the cattle year. returned at the end of the missing. parties were Both law and local rangeland private consisted of both enforcement officials conducted additional owned, leased, successfully and land which Wilcox searches and located more of However, count, graze according or was otherwise entitled to them. cattle to the final upon. plaintiffs Wilcox informed that expected some 107 of the cows and 177 of the was fenced and that natural calves were not returned.2 The animals that barriers restrict allegedly poor would movement of the cat- were returned were in condi- tle where there were no fences. He alsо tion. fencing kept stated that he had a that crew Wilcox, brought against Plaintiffs suit al- good the fences condition. He assured leging pasture agree- breach of the written worry not to about the cattle and agistment. ments and breach of common law pick up, they it when was time to them trial, Following four-day jury a returned ready

would be his corral to take home. a verdict in favor of Wilcox on the breach of 1988, plaintiffs pasture agreements against November delivered 478 the him but Except agistment cows to Wilcox. 1 specifically, for cow that died claims. More arrival, cоndition, upon they good jury unanimously were found that the had and, all pregnant.1 agistment” and but 40 had tested “a Wilcox formed contract of a 6-2, plaintiffs’ testified that he took care of cattle vote found that Wilcox had breached they if as were his own. At the end of damages contract. The awarded winter, employees Wilcox and his moved the for 90 cows at each and 113 calves at $715 each, $39,286.20 range. roughly cattle to the summer He testified for Cornia $400 cows, Thirty-seven 1. Cornia delivered 186 all of which had 2. 70 Cornia’s cows and of Wes- cows, pregnant, tested and Weston delivered 292 Sixty-ninе ton's cows were not returned. of Cor- pregnant. 252 of which had tested Plaintiffs also anticipated nia’s calves and 108 of Weston’s an- Wilcox, delivered 25 bulls to but all of these ticipated missing. calves were also eventually part returned. the bulls are not of this action. Painter, $70,733.76 damages No waite v. 755 P.2d for Weston. alleged poor Ct.App.1988); §§ for the condition were awarded 3A C.J.S. Animals 46-47 (1973). contract, agistment the cattle that were The trial an To establish returned. (1) court, subsequent ruling, plain- duty in a denied the bailor must show that some request prejudgment interest. bargained accepted by tiffs’ carе was for and (2) landowner, and the animals were deliv- (1) contending that appeals, Wilcox Baker, good ered condition. See by denying his motion for trial court erred (holding agistor missing at 320-21 liable for judgment and motion for directed verdict cows); Smurthwaite, (finding at notwithstanding (“judgment the verdict agistment no contract because landowner did n.o.v.”) (2) claims, agistment on the the trial duty grazed not have to care for horses by refusing give requested court erred property). Upon showing, his this 'if the (3) instruction, the evidence does damaged animals are lost or while in the jury’s support not the amount of the award. agis- еxclusive control cross-appeal Plaintiffs the trial court’s refus- tor, agistor arises that the prejudgment interest. al award negligent and he then carries the burden of

going forward with evidence to overcome the Baker, 320-21; presumption. See 666 P.2d at II. ANALYSIS *5 Staheli, 683; McPherson, 655 P.2d at 830 cf. begin with a brief bail review of P.2d at 306. agistment and ment law. Under traditional law, bailment A. Motions Directed Verdict for goods damaged where bailed for a fee are Judgment and N.O.V. destroyed[,] presumption negli- a of judgment “A directed verdict and a gence imposed is on the bailee once the if, justified only looking n.o.v. are after at the proves the bailor fact of bailment and dam- all in evidence and reasonable inferences a age goods. to the bailed The bailee must light nonmoving party, most favorable to the then come forward with evidence that the trial ‘the court concludes that there is no damage loss or was not due to the bailee’s competent support evidence which would a negligence. DeBry verdict his favor.’” v. Cascade Utah, Coop, v. Farmers’ 655 Staheli S. of Enters., (Utah 1994) 1353, 879 P.2d 1359 (Utah 1982) 680, (citing, among 682 693, (quoting Gregg, Gustaveson v. 655 P.2d others, Romney Covey Garage, v. 100 Utah (Utah 1982)). persons If 695 reasonable 167, 170-71, 545, (1941)); 111 P.2d 545-46 see differing could reach conclusions the issue 302, Belnap, also McPherson v. 830 P.2d 306 controversy, then the motion should be (Utah Ct.App.1992). rationale for this The Comm, Id.; Management Gray- denied. bailee, presumption party that as the Gray stone Pines Homeowners Ass’n v. stone “ possession property, of the bailed ‘is a (Utah 1982). Pines, Inc., 896, 652 P.2d 897-98 position to control better the conditions Thus, a motion for a directed verdict or know, may damage cause loss or and to or at judgment granted only n.o.v. can be when ascertain, any least to be able to the cause of moving party judgment is entitled to as a McPherson, damage.’”- actual 830 loss or Stewart, matter law. Hansen v. 761 P.2d Staheli, (quoting P.2d at 306 655 P.2d at (Utah 1988). 14, reviewing trial Streator-Smith, 683); accord Sumsion v. court’s denial of a directed verdict and Inc., 44, 60, 103 Utah 132 P.2d n.o.v., judgment applies this court the same (1943). standard. agistment- species An contract is a whereby asserts that the trial court agrees keep one Wilcox bailment granting erred in not his motion for a direct

care for another’s animals. Baker v. Han sen, 1983); judgment and a n.o.v. because Smurth- ed verdict that others have access to minds could not conclude that envisioned would reasonable Here, plaintiffs possession property. the bailed both ever had “exclusive Wilcox Plaintiffs’ cattle were and Wilcox were ranchers and knew that control” of the cattle. land, public cattle third grazed period for an extended of time on when the were persons them. public general public land to which the had would have access to key parties agreed plaintiffs, Plaintiffs also had a to access also as owners access. of the should have limited access to Wilcox’s and did so a number of times purposes. purposes con- them for a few narrow such as for various Wilcox tends, legal right administering vaccines and medicine. This he did not have the access, fully contemplated by public of the exclude either members formed, agistment contract was plaintiffs lands or from the entire when the rangeland. argues destroy presumption should not He that because possession agistor’s negligence it prove failed to his exclusive when was discovered cattle, they missing. not that the was control of the entitled presumption negligence of his under an Staheli, very This case is different from agistment theory. Lacking direct evi- grain dеstroyed by where stored was a fire of negligence, dence of his Wilcox concludes origin. unknown 655 P.2d at 681. This jury’s supported that the verdict is not give court refused to the bailor the benefit of any competent disagree. evidence. We part on the (1) appeals held that “exclu- had unlimit- The court of has bailee because the bailor grain and control” ed sive access the warehouse where the (2) stored, was was there evidence of the ... does not mean that the bailee must be (3) negligence, bailor’s the bailee was not only proper- one who has access to the primarily responsible controlling the con- ty. may The bailee allow others to access *6 (4) fire, ditions that led to the and the lack of property destroying the without the bail- precautions through control and arose an requirement only ment. The is the emergency storage situation to find for the right persons bailee have the to exclude all grain. Id. at 684. We concluded: by agreement to not covered the and con- property. presumption negligence trol the of not [A] did arise of of [bailee’s] because the absence the McPherson, (emphаsis P.2d at 305 add- premises. exclusive control of the Under ed); § see also 8 Am.Jur.2d Bailments circumstances, the the was in no [bailee] (1980) (explaining ordinarily that bailee is know, position better than the [bailor] entitled to exclude others “within the terms ascertain, toor be able to the cause of the bailment”). McPherson, a landlord possible fire or to control several of the vacating assured his tenants that their furni- causes of the fire. they ture ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍would be safe if left it in his added). condominium. The (emphasis at 303. land- Id. at 683-84 lord’s son moved into the unit. The furniture None of the facts that led to the decision in stolen, subsequently was and the landlord present Staheli here. It is clear that any liability, claiming denied that he did not Wilcox, as caretaker and tracker of the cat- have exclusive and control of the tle, always position was in a far better than applied negligence furniture. The court the know, prevent, or ascertain presumption against the landlord and held parties the cause of the loss. The contem- theory him under a liable bailment because plated graze that Wilcox would the cattle on party third access the had been contem- them, private public property, both and trail plated agreement. in the bailment Id. at provide and for their care. Wilcox testified 305. through range that he and his men rode the nearly every day kept

This case is like McPherson because in and the fences well instances, parties general both the If pub- the bailment maintained. members of the agreement provided that the open agistment The cattle on the with the lie had contact agistors care for the owner’s cattle Wilcox, in the would plaintiffs, would be range, not two-year period. during a fact. Plaintiffs know of that position to best grаze on agreed that the cattle would away, their con- miles and hundreds of lived private agistors’ range, which consisted infrequent, limit- was was with the cattle tact townships. properties range rights and in five made purposes, and was to a few narrow ed agistors The cattle were delivered to the and of their arrival. only by advising Wilcox first agistors’ commingled with their cattle on the circumstances, unjust it not was Under these later, range. Several months the cattle were presumption negligence impose range, a count moved to a new and revealed apply the otherwisе would To hold Wilcox. had delivered. The 298 head less than been requirement possession and control exclusive upon showing by court stated that wholly unrealistic fash- in a mechanical and loss, proof presumption of owner of ion. negligence operated placed burden going agistors. Id. 301 P.2d forward on strictly apply decline to standard at 1049. this case differs principles because bailment important in two from most bailment cases trial, agistors in met their At Sewell First, ways. property consisted of the bailed proffered sufficient evidence to burden Typical were alive and mobile. which they not convince the trier of fact that had ly, property is inanimate and is the bailed caring cattle but at negligent been for the key under lock and in a confined area. stored good range prac- all times had maintained Second, place public agistment took agistors proffered also evi- tices. Id. The case, pos land. this is exclusive When from the dence to show that the loss resulted require control does not that the session and drifting to their home of the cattle agistor legal right have the to exclude others poor condition of thе cattle when deliv- graze. cattle from the whereon the range. to the Id. The owner then ered would be entitled Otherwise no cattle owner fix offer sufficient evidence to liabili- failed to where the con- ty upon agistors. The trial court anticipated grazing agistment arrangement agistors liable for cluded were not rangeland. the cat cattle on Because affirmed, stating the loss. The Sewell court *7 generally good posi not in as a tle owner is ade- that the trial court’s conclusions were loss, agistor explain the tion as the to by Id. quately supported the recоrd. owner, presumption negli without Likewise, plaintiffs in this ease are entitled likely prima a gence, would fail to state facie negligence because to Thus, practical negligence. case of effect with the care Wilcox was the one entrusted strictly applying the exclusive position in a than of the cattle and was better requirement would be to relieve and control of loss or plaintiffs to control the conditions liability part agistor on of an for loss all upon damage. the burden is Wilcox care, are damage when while his or to show an ab- proffеr sufficient evidence rangeland. impact grazing The part on his or to show sence of sig upon agistment arrangements would be surrounding the loss and the circumstances large a nificant in a state like Utah where why negligence. The it was not due to his public. rangelands are percentage as to the care jury heard Wilcox’s evidence Henry McCleary unconvinced that gave the cattle but was

This case similar he Sewell, 231, negligence. presumed P.2d v. 72 Nev. 301 it rebutted his Timber Co. support (1956), sought competent evidence a cattle owner find sufficient 1047 where verdict. recovery of its cattle. for the loss of some

1386 Jury long competent as there is evidence to sus

B. Bailment Instruction Care, tain it. Rees v. Intermountain Health duty “A trial court has a to in (Utah Inc., 1069, 1991); P.2d 1072 Pen 808 jury applicable on the law struct the (Utah 1987). Carter, 199, rod v. 737 P.2d 200 Hamilton, 827 facts of the case.” State v. (Utah 1992) 232, (citing P.2d 238 State v. jury damages for 90 awarded (Utah 1981)). Potter, 75, Deter 627 P.2d 78 cows, and did so at the rate of each. $715 mining whether the trial court’s refusal to expert Plaintiffs’ that in the fall of testified jury give proposed a instruction constitutes 1989, average price preg a market Therefore, presents question of law. error average nant mature cow was and the $715 grant pаrticular to the trial we no deference price nonpregnant for a cow was Wil (U.S.A.) $492. rulings. Ong Inc. court’s Int’l v. 447, argues cox that the could not conclude Corp., 11th Ave. 1993); Hamilton, 238; every 827 P.2d at Ramon v. missing that cow should have been (Utah 1989). Farr, pregnant fifty percent returned

pregnancy only supported rate was the rate Wilcox contends that the trial court by agree. the evidence. We prejudicial refusing committed error in expert Plaintiffs’ own testified that he posses instruct exclusive damage calculations on the as- based his requires proof and control standard sion sumption that all of the mature cows would legal right the bailor’s to exclude the owner pregnant. have returned On cross-examina- possession. and all others from Wilcox’s ar gument hinges language in McPherson: tion, he that an admitted unknown number actually constructively “The bailor must nonpregnant expected cows must be and a deliver the to the bailee in such a corresponding per deduction in value head way toas entitle the bailee to exclude others would “seem obvious.” When test- possession during period, the bailment Wilcox, ed the cattle that were returned including the 830 P.2d at 304 owner/bailor.” approximately pregnant. half of them were Bank, (citing v. Broaddus Commercial Nat’l fifty expert percent Wilcox’s testified that a (1925)). 10, 11, 113 Okla. 237 P. pregnancy given rate was not abnormal quarrel require While we have no with this fact that the cattle were on Wilcox’s eases, ment in traditional bailment as we for the first time and there was a severe explained, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍have exclusive control was not drought experienced in the area. An ranch- contemplated by to this action. fifty percent pregnancy that a er testified Accordingly, correctly we hold that the court unusuаl, neighbor- rate would not be while a jury. refused to so instruct the ing rancher testified that the was rate consis- experienced by tent with the rates ranchers Damages C. Award of *8 nearby range during period the same under similar circumstances. Wilcox contends that there is in competent sufficient to evidence sustain the jury’s We conclude that the calculation of jury’s findings missing as to the value of the damages regard missing to the mature damages mature cattle for which were supported by competent cows is not evidence. “‘[Jjuries generally awarded. are allowed We therefore hold that Wilcox is entitled to a wide discretion the assessment of dam ” missing remittitur to reflect half of the ma- ages.’ Bennion v. LeGrand Johnson per ture cattle at head instead of $492 $715. 1985) Co., (Utah 1078, Constr. 701 P.2d 1084 Jacobsen, 1207, See Nelson v. 669 P.2d 1217 723, (quoting Montoya, Cruz v. 660 P.2d 726 (Utah 1983) (explaining may that court re- (Utah 1983)). We view the evidence in a quire to remittitur restrain reduce arbi- light jury’s findings most favorable to the verdict). uphold damages trary jury and will its calculation of so or excessive This de-

1387 (15 $3,345 the seller should by head at difference between what award creases Cornia’s have received under the contract and what $35,941.20 by $223) аward and Weston’s actually Id. at 233. The trial he received. (30 $223) $64,043.76. $6,690 at head prejudgment court added interest award, and this court affirmed that decision. Prejudgment D. Interest Id. at 230. cross-appeal, plaintiffs In their clearly Jorgensen distinguishable is from in not award assert that the trial court erred Jorgensen, this case. In there was no dis- jury’s ing prejudgment interest on the them pute price as to the number or the case, sheep that were to be sold. In this the damages award. A trial court’s decision jury testimony conflicting experts heard deny prejudgment presents interest grant or expected pregnancy regarding the cattle’s question we review for cor of law which rates, rates, weight range, loss and market Kurzet, Bailey-Alien Co. v. 876 rectness. addition, divergent prices. the heard (Utah 421, Ct.App.1994); 427 Andrea- P.2d gen- regarding expected the calves’ evidence Co., Casualty P.2d son v. Aetna & Sur. 848 der, rates, mortality weight range, and mar- (Utah 171, Ct.App.1993). law on 177 prices. Plaintiffs could not establish ket this issue is clear: fact, a matter of and thus these elements as judgment to use its was free best damage complete and the “[W]here assessing damages. ascertaining and particu- amount of the loss is fixed as of a time, by lar and that loss can be measured expert did estimate the value of Plaintiffs’ figures, interest should be al- facts and missing damage in his calculation. cows ... lowed from that time and not from However, expert’s estimates “[w]hile hand, judgment. date of On the other awarding enough basis for reliable damages incomplete are or cannot where damages, assumptions used to arrive at by only accuracy, are no means the calculated with mathematical those estimates be way damages.” to arrive at Anesthesi- [the] injury, personal such as in the case of Hosp., 852 ologists Assоcs. v. St. Benedict’s character, death, wrongful defamation (Utah 1030, Ct.App.1993), vacated P.2d 1042 etc., imprisonment, false the amount of 1994). (Utah grounds, P.2d 1236 on other 884 damages must ascertained and assessed be information, plain- clear factual Without trial, by fact at and in the trier of the damages not be measured tiffs’ could prejudgment not al- such cases interest is math- figures” or “calculated with “facts lowed.” accuracy.” Canyon Country ematical See Store, these circum- 781 P.2d at 422. Under Bracey, Canyon Country Store v. 781 P.2d stances, correctly plain- trial court denied 1989) (alterations (Utah original) 422 prejudgment interest. tiffs (quoting First Bank Utah v. J.B.J. Sec. (Utah Inc., Feedyards, P.2d reasons, grant we a remitti- For the above Malnar, 1982)); see also Bellon v. $35,941.20 tur, decreasing judgment 1991). (Utah 1089, 1097 $64,043.76 Comia and for Weston. rely Jorgensen Clay Plaintiffs v. John STEWART, ZIMMERMAN, C.J., and Co., 1983), where a & C.J., concur. Associate sheep brought a of contract seller of breach *9 buyer. Following buy- against action a the DURHAM, Justice, dissenting: contract, repudiation of the the seller er’s sheep buyer to another at an amount sold the majority respectfully I dissent. As the buyer was contractu- than the defendant less notes, strictly apply to opinion “decline[s] its ally оbligated pay. to Id. at 230. The principles” and in effect standard bailment grazed on upon creates a new rule for livestock damages the seller based awarded required explain the loss may a should not be to public rangeland. While it reflect liability.” (citing pain under of Id. United choice, signifi- it indeed a legitimate policy is Exck, Mowbray’s Floating Equip. States v. law, departure existing from a result not cant (2d Cir.1979)). Inc., 601 F.2d opinion. fully acknowledged in the Similarly, parties possess proper- if the contends that there was insufficient Wilcox ty consecutively and it is unknown whether support a verdict that he evidence to damage and occurred when the bail- the loss plaintiffs from legal right to exclude had the pre- possession, in the law does not ee was He directs our possession of their cattle. negligent. the bailee Id. Under the sume undisputed that to the evidence attention court, reasoning throughout ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of the CFC length grazed for an extensive of cattle pasture agreements, plain- duration public general to which the time on land grazed private tiffs’ cattle were both shows that public had access. The record public rangeland. Because failed tо pasture throughout the duration of the their cattle were on defendant’s show loss, i.e., that private land at the time of their spread in agreements, plaintiffs’ cattle were legal right preclude them defendant had a to groups private and land. over both find, their I would as a from access to compel a undisputed evidence should This law, presumption of matter of that a defen- law, that, finding as a matter of defendant Indeed, negligence should not arise. dant’s right plain- legal did not have the to exclude situation, unjust arguably it in such a with is their cattle. under Utah tiffs from showing negligence, require no to the bail- law, agistment minds could not reasonable account loss. ee to for the have concluded that defendant had exclusive out, possession grazing of the cattle. points control As defendant cattle are damage many susceptible to loss and from Fabrication, This case is similar to CFC agister which the would not be able to causes Co., (5th Inc. v. Dunn Constr. 917 F.2d 1385 example, grazing cattle can ascertain. For Cir.1990), a denial of a direct- which reversed die, off, wander or be stolen without posses- ed verdict on the issue of exclusive agister’s knowledge, agister if еven is providing due care. The if sion and control. The CFC court held that is, course, perfectly not a func- a bailor a ac- bailee have simultaneous tioning principle necessity, but arises property to or cess the bailed when the loss agister due to the fact that an who is in occurs, damage presume the law does not possession position exclusive is a better negligent. drawing Id. at 1389. In bailee than the to bailee ascertain the cause of loss conclusion, this CFC discussed the rationale However, damage property. or to the it Utah, Coop, v. Farmers’ Stаheli S.of appear in does not this case that reasonable 1982), bailee who minds could find that defendant alone had exclusively possesses bailed access to information about the loss and dam- position better to control or ascertain the age or that defendant alone was able CFC, damage. cause loss or 917 F.2d damage. prevent Accordingly, the loss and I contrast, at “In 1388. when the bailee does would find the uncontroverted evidence es- solely possess property, not he is no tablishes, law, as a matter of that defendant prevent explain more able to the loss than did not have exclusive access to and control Therefore, simultaneously possession others and thus of the cattle.1 the trial court evidence, marshaling Although parties point only marginally 1. In both This is relevant. that, pursuant pasture agree- out to the written party agrees provide prop- who total care for ments, agreed provide defendant "total care” likely party erty is most to be the who has access plaintiffs’ Although plaintiffs agreed cattle. property, responsibility care for total responsibility branding, vaccinating, share and does not establish the existence or absence of trucking, responsibilities all other in rela- exclusive and control. tionship to the cattle were assumed defendant. *10 RUSSON, J., dissenting concurs in the motion for a granted defendant’s have should opinion of Justice DURHAM. failed Plaintiffs’ evidence verdict. directed negligence, and as to create concede, they put forth no evidence negligence.2 unnecessary damages need to address the issues of and inter- makes it to treat

2. This conclusion challenge the court's instruction cross-appeal. defendant's setting est raised in the requirement presumption of for a out contract. under a bailment bailee’s conclusion, addition, there is no due to this