Donlan v. Clark

45 P. 1 | Nev. | 1896

When a bailee, either for hire or gratuitous, is entrusted with the care and custody of goods, it is his duty to return them at the end of the bailment or account for their loss, and show that it happened without legal negligence upon his part. If he fails to do either, the presumption is that they have been converted by him or lost through his negligence, and he is responsible for them. (Beardslee v. Richardson, 11 Wend. 25; Logan v. Mathews, 6 Pa. St. 417; Wiser v.Chesley, 53 Mo. 547; Cumins v. Wood, 44 Ill. 416;Murray v. Clarke, 2 Daly, 102; Arent v. Squire, 1 Daly, 347.) We regard these principles as conclusive of the defendant's liability in the case. The court found, upon sufficient evidence, that he received the goods in good order, that he failed to return a part of them, and returned the balance in a damaged condition. He failed to account for this state of affairs. His defense consisted of a denial that any of the goods had been lost or damaged while in his possession, and his evidence, if true, showed that such could not have been the case, but unfortunately for him, there was evidence to the contrary, and the court found the fact against him.

The very fact that they were so taken and used, is, under the circumstances, strong evidence that it was either done with the defendant's consent, or through gross negligence upon his part. (Boise v. H. N. H. R. R. Co., 37 Conn. 272.) This finding makes that one of the settled facts in the case, and leaves him in the predicament of a bailee in whose custody goods have been lost or damaged, and for which he has wholly failed to account. This, at least, threw upon him the burden of proving that they had not been lost or damaged through any fault of his, and this means more than that he must produce evidence to that effect. He must establish it to the satisfaction of the court, and if he does not, where there is a conflict in the evidence, the case stands the same as though no evidence to that effect had been offered.

Had he been able to establish that the goods had been stolen, or used without his connivance or negligence, this would have constituted a complete defense for him, even though the wrongful act had been perpetrated by a servant or some one in his employ. (Jones on Pledges, sec. 408; Story, Bailments, secs. 88, 338.) But no explanation whatever left him responsible for the loss, and, as already stated, this is equally true whether, after payment of the debt, he was bound to exercise ordinary care and diligence, or was liable only for gross neglect.

We are of the opinion that there was some substantial evidence to support the finding that the damage was done while the goods were in the defendant's possession, and not while in charge of the express company.

The judgment is affirmed.