Gray v. EJ Longyear CompanyGray v. EJ Longyear Company
Lead Opinion
OPINION
Russеll P. Gray, plaintiff below, loaned various tools to George Elliott to be used by Elliott in the business of his' employer,. E. J. Longyear Company,' defendant below. No charge was made-for use of the tools, nor did their use by defendant bene-, fit plaintiff in any way. Elliott kept the-borrowed tools in a building owned by defendant and located only a few feet from a garage leased tо plaintiff.
Defendant’s building, plaintiff’s garage, and their contents were destroyed by a fire that started in defendant’s building. Plaintiff thereafter brought an action in two counts for the value of plaintiff’s property loaned to defendant and for the destruction of the property in plaintiff’s garage.
Plaintiff’s testimony was the only evidence adduced at trial. It established that the only mеans of heating the Elliott building was an open metallic container into which diesel fuel was poured and ignited, and that gasoline, other flammable liquids and various combustible materials were also kept in defendant’s building. Plaintiff, who was away from town at the time of the fire, observed these contents of defendant’s building and the method by which it was heated three days before the fire and protested to Elliott regarding the fire hazard. On this evidence the trial court concluded that defendant was negligent, that his negligence was the proximate cause of thе fire and of the ensuing loss, and awarded judgment on both counts. This appeal followed.
Even viewing the evidence in its aspect most favorable to support the judgment, as we must, Giles v. Herzstein,
We find nothing in the circumstances surrounding the destruction of 'the property located in plaintiff’s garage which would permit application of the doctrine of res ipsa loquitur. Negligence may not be inferred from the mere happening of an injury. Accordingly, the mere occurrence of a fire raises no inference of negligence. See Annot.
Conversely, the mere occurrence of a fire is not sufficient to discharge the defendant’s liability for failure to return the property loaned to defendant by plaintiff. Though there appears to be some confusion and variation in the decisions, the trend of modern authorities states the . controlling legal principles to be that a bail- . or makes out a prima facie case of a bailee’s negligence by a showing of delivery of the рroperty to a bailee in good condition, and his failure to return, or a return in damaged condition. At that point, the ■ law presumes negligence and casts upon the bailee the burden of going forward with explanatory evidence to show that the loss did not occur through his negligence, or if he cannot affirmatively do this, he must show exercise of a degree оf care sufficient to rebut the presumption of negligence. See Annots.
A case closely in point upоn its facts is Frissell v. John W. Rogers, Inc.,
In view of the complete absence of any evidence offered by defendant, wе can come to no other conclusion than that the defendant has failed to overcome the presumption of negligence respecting the bailed articles.
Dеfendant argues that plaintiff assumed the risk of loss by failing to remove the loaned articles from Elliott’s possession upon discovery of the condition of the garage three days prior to the fire. We cannot agree. The doctrine of assumed risk is based upon the maxim “volenti non fit injuria” which has been translated as “[t]hat to which a person assents is not esteemed in law an injury.” Edwards v. Kirk,
Finally, the record in this case does not require a determination as a matter of law that plaintiff was contributоrily negligent. The question of contributory negligence is ordinarily for the trier of fact. Jones v. New Mexico School of Mines,
It follows that the case must be remanded with direction that the judgmеnt be vacated and a new judgment entered awarding plaintiff damages only for the value of the bailed articles not returned.
It is so ordered.
Dissenting Opinion
(dissenting).
The issues presented in this type of controversy have caused much trouble in the courts and there is no unanimity of opinion. Generally, a bailor has the choice of bringing his action against the bailee in trover for conversion, in assumpsit on breach of contract, or in tort for negligence. When suing in tort for negligence after a delivery to the bailee and a subsequent failure to return is alleged and shown then a рresumption of negligence arises and it devolves on the bailee to rebut the prima facia case and show that the failure to return was not the result of his negligence. This is the position taken by the majority in this case and the writer is in complete accord with that statement of the law. The difficulty lies in the fact that the rule is not applicable in this case. Hеre, the plaintiff affirmatively alleged the delivery of the chattels to the bailee, the failure of the bailee to return them, the destruction of the chattels by fire, and finally the negligence of the bailee in allowing the fire to start. There is one line of cases refusing to recognize any inference or presumption of negligence in a fire or theft case. There is much to be said in support of that view but a discussion is not indicated here. Another view is that if the bailor in addition to alleging the bailment and failure to return, also alleges destruсtion of the chattels as a result of the negligence of the bailee, that the duty of proving negligence remains with the bailor and the bailee may remain silent.
To supplement the citations supplied in the majority opinion so that other facets of the problem may be seen and evaluated the following may be helpful. 8 Am.Jur.2d, Bailments, § 315; 65 A.L.R.2d § 1288, page 1249, where the distinсtion due to pleadings is noted;
In this case the pleadings filed by the plaintiff have deprived him of the procedural advantage of a prima facie case. To affirm the judgment in his favor is to do so on evidence which in the words of the majority did not even support an inference. This could be avoided by yeilding to the weight of authority. Further, to requirе substantial evidence of negligence in a fire case, where negligence has been alleged, is to be consistent with common experience.
The majority being of a different opinion, I respectfully dissent from that part of the decision determining the liability of the bailee.