Opinion
Rehearing Denied July 16, 1970.
William J. Madden, Denver, for plaintiffs in error.
Yegge, Hall & Evans, John R. Trigg, Denver, for defendants in error.
DWYER, Judge.
This case was originally filed in the Supreme Court of the State of Colorado, and was subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
The parties appear here in the same order as in the trial court and are referred to as they there appeared or as the bailors and bailee.
Plaintiffs delivered their automobile to defendant for repairs. While in the bailee's possession, the auto was stolen. It was subsequently recovered, but was returned in a damaged condition and the bailors commenced this action to recover their loss.
The case was tried to a jury which returned a verdict for the defendant. The bailors seek to reverse the judgment entered on this verdict. In lieu of a reporter's transcript, the parties have stipulated the facts as follows:
'(1) that the plaintiff's automobile was bailed by the plaintiff to the defendant, (2) that while said automobile was in the defendant bailee's possession and control the plaintiff's automobile was stolen, and
(3) that when said automobile was recovered it was recovered in a damaged condition.'
The only question presented on this appeal is whether or not the trial court correctly instructed the jury on the burden of proof. It is not disputed that the liability of the bailee in this case is dependent upon whether or not the theft was the result of the bailee's negligence. Upon this issue, the court instructed the jury that the burden of proof was upon the bailors to prove that bailee was negligent. The bailors contend that this instruction was in error; that the bailee had the burden of proving that he was not negligent; and that the jury should have been so instructed.
We hold that the court correctly instructed the jury that the bailors had the burden of proving that the theft was the result of the bailee's negligence. Hipps v. Henning, Colo., 447 P.2d 700 (1968), decided while this appeal was pending, is controlling. The Supreme Court there stated the rule applicable to the burden of proof in a bailment case as follows:
'Insofar as the procedural aspects of the case are concerned, the rule is clear in Colorado that once goods are delivered in good condition to a warehouseman who accepts them, but cannot redeliver them, or can redeliver them only in a damaged condition, a presumption of negligence on the part of the warehouseman arises, and the burden of going forward with evidence to rebut that presumption rests on the warehouseman. There is, however, no shift in the burden of proof, which still remains with the plaintiff. Bankers Warehouse Company v. Bennett, 148 Colo. 323, 365 P.2d 889; Wheelock Bros., Inc. v. Bankers Warehouse Co., 115 Colo. 197, 171 P.2d 405, 168 A.L.R. 939; and Nutt v. Davison, 54 Colo. 586, 131 P. 290, 44 L.R.A.,N.S., 1170.'
An earlier case in accord with this rule is Hebert v. Patrick, 27 Colo.App. 204, 146 P. 190. In that case, the plaintiff sued the defendant for the value of a horse entrusted to the defendant for care. The horse escaped or was stolen and the defendant was unable to return the same upon demand by the plaintiff. Trial was held to a jury and a verdict was returned for the defendant. The court had instructed the jury that the burden of proof was upon the plaintiff. The plaintiff contended that the burden was upon the defendant to prove their lack of negligence. The court stated the general rule under the law of bailment to be that the owner of an animal makes out a prima facie case when he has proved the agistment or bailment, the demand and the failure to return. In affirming the lower court's instruction on burden of proof, the court stated:
'But after the agister pleads and proves that the animal escaped by jumping over a lawful fence, or was stolen, as was done in this case, or otherwise explains the loss in a way that discloses no negligence on his part, the burden shifts to the plaintiff. It is not necessary for the defendant to go further and rpove affirmatively no negligence on his part, because his prima facie exoneration shifts the burden to the plaintiff. Schouler on Bailments, 3d Ed., s 23. The agister is not an insurer of the safety or return of the animal, but, in the event of loss, and a prima facie exoneration on his part, he is only liable on proof of negligence or want of ordinary care. (Emphasis supplied.)
The judgment is affirmed.
SILVERSTEIN, C.J., and ENOCH, J., concur.