This is а law action for damages for the alleged 'each of a bailment contract. The defendant has ppealed from the judgment entered on the jury’s jrdict for the plaintiff in the sum of $65,000. We ¡verse and remand.
The plaintiff was an experienced dealer in used wmill equipment. In 1972 he purchased a large >lume of that type of equipment in the western states r reshipment to the Philippine Islands. The defend-lt has a yard in connection with its office and shops l Columbia Boulevard in Portland. The yard is ap-oximately 20 acres in size and is enclosed by a six-ot-high cyclone wire fеnce.
The plaintiff’s amended complaint was for breach contract. It alleged and the defendant’s answer mitted the bailment of the plaintiff’s sawmill equip-¡nt and its storage in defendant’s yard in 1972. The lintiff further alleged that on or about October 1, 75, when the plaintiff requested the redelivery of e equipment, the defendant failed and refused to leliver equipment worth the reasonable value of 6,777. The defendant’s answer alleged thаt on or out October 1,1975, the plaintiff removed the equip-rnt stored at the inception of the rental agreement iept for property earlier removed at the direction of |p plaintiff. The answer denied the balance of the nplaint. None of the pleadings contained any ref-mce to negligence.
Defendant’s Requested Instruction No. 5
"A party who stores goods for the benefit of another or for their mutual benefit is a bailee. A bailеe is not an insurer of the goods stored and is only liable if you believe, from the evidence and these instructions, that the bailee’s failure to return the goods was a result of the bailee’s negligence or lack of ordinary care.”
Defendant’s Requested Instruction No. 4
"In this case, the plaintiff must prove by a prepоnderance of the evidence that he delivered the goods to defendant and that defendant on plaintiff’s demand failed to return them tо him in the same condition except for any normal depreciation caused by normal weathering under the circumstances of their storage.
"In this regard, plaintiff must convince you by a preponderance of the evidence that each item or portion of an item for which damages are claimed was delivered to the defendant’s custody and not returned on demand.
"If you believe the goods were delivered to defendant but not returned, it becomes the defendant’s duty to come forward with evidence that its failure to return the goods was not duе to negligence on defendant’s part. If the defendant does not do so, then you may, but you are not required to find that defendant was negligent.”
The plaintiff counters by saying that the questions on appeal are: (1) whether the defendant bailee was entitled to have the jury instructed on negligence when its pleading alleged that all of the property was returned; and (2) whether the defendant waived its right to assign as error the refusаl of the requested instructions when it failed to take an exception to mutually exclusive instructions given by the court.
We first consider the plaintiff’s second question.
"The burden of proof is upon the plaintiff to establish by a preponderance of the evidence that he delivered the equipment, which is admitted, but delivered the equipment which he alleges was not returned to him. And if you find thаt the equipment that he alleges in his complaint, or a part of it were not returned to him, then by what is called a preponderance of the evidence you will have to determine what was the value of that equipment to him as to the question of damages.”
"Now, if you find that the plaintiff is entitled to recover, that is, that the defendant failed to return all of the equipment that he contends to the plaintiff, then you will considеr the question of damages.”
The defendant did not except to the giving of either the above instructions.
ORS 17.510 provides that no instruction given shall subjeсt to review unless an exception was made in } trial court. Harley-Davidson v. Markley, 279 Or -,
We find that the defendant’s requested instructions negligence clearly and directly called the trial rt’s attention to the fact that the instructions given •e inconsistent with the defendant’s theory of the e. The requested instructiоns gave the trial court
A bailee is not an insurer. In an action for the breach of a bailment contract for the failure to return the bailed goods, the bailor is required to prove that the bailee was negligent. It is is not necessary to plead negligence. In National Fire Ins. Co. v. Mogan,
"The bailors had a choice of remеdies. They might either have maintained an action of assumpsit for breach of the contract or sued in tort charging negligence. When the action is for breach of the contract it is sufficient to allege the bailment and failure of the bailee to return the property. And upоn proof of these facts a presumption of negligence on the part of the bailee arises.”
Proof that the property wаs delivered to the bailee and not returned supports an inference
In this case the plaintiff was not required to plead negligence. The defendant was not required to allege in its answer that it was not negligent. When the plaintiff offered proof that the sawmill equipment had been delivered to the defendant and not returned, an inferenсe was created that the defendant was negligent. The defendant then had the burden of going
Reversed and remanded.
Notes
The plaintiff has cross-appealed assigning as error the trial court’s iting of defendant’s mоtion at the conclusion of the testimony to strike i plaintiffs complaint the claim for prejudgment interest from October 5. We do not reach the cross-appeal. We cannot say that on retrial the ntiff s evidence will satisfy the standards set down for prejudgment rest in Public Market Co. v. Portland,
The trial court аlso refused to give the plaintiffs requested instructions on the question of negligence.
The Oregon cases on this subject use the terms "inference,” "disputable presumption,” and "prima facie case” interchangeably.