
    BAILMENT — EVIDENCE.
    [Jefferson (7th) Circuit Court,
    November Term, 1903.]
    Laubie, Cook and Burrows, JJ.
    A. W. McDonald & Co. v. John A. Miser.
    Burden of Proof.
    In an action against the bailees of a team of horses, for causing the death of one of the horses and injuring the other, by negligently driving the same, the burden is on the bailor to prove negligence, and it is not shifted by showing the horses were sound when delivered to the bailees; the bailor being immediately informed by the bailees of the circumstances attending the injury to the team.
    Error to common pleas court of Jefferson county.
    Henry Gregg and J. C. Bigger, for plaintiffs.
    D. M. Gruber, for defendant.
   COOK, J.

The action below was to recover damages for negligently, causing the death of a horse of plaintiff and for injury to another. Plaintiff hired to defendants a team of horses to do certain hauling upon their contract of building a section of railroad. The averment of the petition is, “That by reason of placing said horses.in the hands of a different driver than the one agreed upon, which driver was incompetent to handle and properly care for said horses, and by reason of the negligence of said defendants in handling said horses and immoderately driving said horses and failing to take proper care of said horses one of said horses was killed and the usefulness of the other horse was greatly impaired for some time thereafter, to the damage of the plaintiff in the sum of $200.” To this petition there was a general denial; also an averment in the answer that the horses were unfit to perform the services for which they were hired. This averment was denied in the reply. The evidence showed that one of the horses died while it was being driven and that the other horse was also in bad condition when it was returned to plaintiff. The evidence further tended to show that the servants of defendants drove said horses, after having knowledge that the horse that died was entirely unfit to be driven and that the other was fagged out and not in good condition. The evidence further showed that plaintiff was immediately informed of the death of the horse and the manner in which it died; its symptoms, etc.: the claim being made by defendant’s servants that they had in no manner abused the horse and that the symptoms indicated colic which had been occasioned by previous bad feeding on the part of plaintiff.

The case under the evidence was not a clear one as to negligence and the jury would have been justified in finding for either plaintiff or defendant under the issues made.

Under these issues and this evidence the court charged the jury at request of plaintiff' as follows, upon the' question of the burden of proof:

“If you find from the evidence that the team of horses was in good condition when they were delivered to the defendants to be used as on the occasion mentioned in the plaintiff’s petition and one of them was dead and the other injured when returned, the burden of proof is upon the defendants to show that they used said team in a careful 'manner and as an ordinarily prudent man would have used them under similar circumstances. The law is that when property is received by the hirer thereof in a good condition and returned in a bad condition or not returned at all, the person so hiring said property is presumed to have acted negligently.”

In the general charge the court further said to the jury:

“Now the burden of proving the agreement set' forth in the petition as to the way the horses were hired, etc., is upon the plaintiff. He must satisfy you by a preponderance of the evidence that what he sets forth in that regard is the truth; but the burden of proving that the defendants, under the circumstances, exercised ordinary care and diligence in the use and management of this team is upon the defendants under the circumstances, and also the burden is upon the defendants of proving that the plaintiff was negligent in the manner set forth by defendants and that such negligence contributed directly to produce the injury to such team.”

As stated the action was for negligently driving the horses. It was not for conversion of the horses or either of them, and whatever may be the rule as upon whom the burden rests in an action for conversion by the bailee, if it is different, would not apply in this case.

It is insisted by counsel that in all cases of bailment where the property is delivered in good condition and destroyed or returned in an' impaired condition that the burden rests upon the bailee to show that he was without fault; that the rule arises from the necessity of the case, as the bailor would have no' knowledge as to the manner in which the property was taken care of.

It may be conceded that where property is delivered to the bailee in good condition and it is destroyed ór returned in an impaired condition and he gives no reason for its destruction or impairment, that that would make a prima facie case of negligence. The mere fact that he received it in good condition and did not so return it would be some evidence of negligence especially so when he gives, no reason why he did not return it in good condition; and, were there no other evidence, would justify a jury in finding that the defendant was guilty of negligence in its destruction or impairment; but we do not think that in a case like this, where there is a large amount of evidence, part of it tending to show that the bailees were guilty of negligence and some that they were wholly without fault, that it is proper to charge the jury that the burden rests upon the defendant’s bailees to show by a preponderance of the evidence that, they did not act negligently in the use of the property.

We are aware of the fact that there are courts worthy of great consideration that so hold. Cumins v. Wood, 44 Ill. 416 [92 Am. Dec. 189] and cases in the note.

It seems to us that in the cases so holding that there is confusion in confounding evidence making a prima facie case or the burden of evidence as it is sometimes called by text writers and the burden of proof in the case, and upon whom it rests.

The party upon whom the burden of proof rests is made by the pleadings and continues from the first stage of the trial to its end. He who affirms must prove.' The burden, of evidence shifts but the burden of proof never shifts. Mr. Taylor in his work on Evidence, Vol. 1, page 216, says: ,

“It is hardly necessary to say that the burden of establishing a case does not shift. It cannot shift simply because the issue has been fixed once for all by the pleadings and the rules of pleading do not permit it to he altered, during the progress of the trial on those pleadings.”

In Willett v. Rich, 142 Mass. 356, 360 [7 N. E. Rep. 776; 56 Am. Rep. 684], it is said

“We understand the doctrine to be well settled in this commonwealth, that the burden of proof never shifts, and we" think that, in the the case we are discussing, and in the case at bar, the burden to show negligence was upon the plaintiffs from the beginning, and remained upon them throughout the trial.” ,

That case was an action against a warehouseman. They received goods in good condition and did not return them in the same condition for the reason that they were injured by the fall of the warehouse. The court decided:

“In an action of contract against a warehouseman, for a failure to keep safely goods entrusted to him, if it appears that the goods were returned in a damaged condition, and that the damage was caused by the fall of the warehouse, the burden of proof is on the plaintiff to show that such dama.ere was caused by the negligence of the defendant or his servants.'

In the opinion Morton, C. J., says, page 357:

“The fundamental rule as to the burden of proof is, that, whenever the existence of any fact is necessary in order that a party may make out his case or establish a defense, the burden is on such party to show the existence of such fact. In Stephen’s Digest of the Law of Evidence, the rule is stated to be that ‘whoever desires any court to give judgment, as to any legal right or liability dependent on the existence or nonexistence of facts which he asserts or denies to exist, must prove that those facts do or do not exist.’ Stephen, Evidence (Am. ed.) 175.”

Again the learned judge says, page 359 :

“It may be that, where there is a refusal to deliver, the plaintiff may make out a prima facie case upon proving this fact, because such refusal, if unexplained, is some evidence of the breach of the contract. But this does not shift the burden originally on the plaintiff to prove a breach of contract.”

It should be stated that the declaration in this case contained two counts, and was tried on the second which contained the averment that the goods were injured through the negligence 'of defendants and their servants.

The case of Claflin v. Meyer, 75 N. Y. 260 [31 Am. Rep. 467], was an action against a warehouseman for failure to deliver goods deposited with him which had been stolen from the warehouse and the court held:

“In an action against a warehouseman for refusal to deliver goods entrusted to him, where the refusal is explained by the fact appearing, that the goods were lost by a burglary, the burden is upon the plaintiff to establish affirmatively that the burglary was occasioned by, or was not prevented by reason of some negligence or omission of due care on the part of defendant; the court will not assume in the absence of proof that the loss was the result of his negligence.
“The warehouseman in the absence of bad faith is only liable for negligence, and one bringing an action against him for the loss of goods must allege and prove negligence; this burden is never shifted; if plaintiff prove demand and refusal to deliver, this unexplained is prima facie evidence of negligence; but if it appear that the goods have been lost by theft, plaintiff must show that the loss arose from the negligence of defendant. 1
“Where therefore the facts proven are as consistent with due care as with want of it plaintiff cannot recover.”

In the opinion Hand, J., saj's:

“It will be seen, as the result of these authorities, that the burden is ordinarily upon the plaintiff alleging negligence to prove it against a warehouseman who accounts for his failure to deliver by showing a destruction or loss from fire or theft. It is not of course intended to hold that a warehouseman, refusing to deliver goods, can impose any necessity of proof upon the owner by merely alleging as an excuse that they have been stolen or burned. These facts must appear or be proved by reasonable certainty. Nor do we concur in the view that there is in these cases any real ‘shifting’ of the burden of proof. The warehouseman in the absence of bad faith is only liable for negligence. The plaintiff must in all cases, suing him for the loss of goods, allege negligence and prove negligence. This burden is never shifted from him. If he proves the demand upon the warehouseman and his refusal to deliver, these facts unexplained are treated by the courts as prima facie evidence of negligence; but, if either in the course of his proof or that of the defendant, it appears that the goods have been lost by theft, the evidence must show that the loss arose from the negligence of the warehouseman.”

A clear distinction between a prima facie case or the burden of evidence, and the burden of proof is made in the case of Oaks v. Harrison, 24 Iowa 179, referred to in Taylor, Evidence 27G, 279, under the heading of 11 Burden of Evidence. ’! It is there said:

“The duty of introducing evidence to prove or prevent proof of facts in issue is not, like the burden of establishing, a resultant of the pleadings. Its position, as between the parties, is determined, not by the stale of the pleadings, but by the logical state of the case. The issue beh.'g fixed, the logical interest of one party is to produce an affirmative conviction on the part of the tribunal. It is the object of the other party to prevent it. Such a state of the evidence as would, if undisputed, produce such affirmative conviction, constitutes a prima facie casé. It merely repeats the statement, therefore, in another forrn, to say that the interest of one party is to establish such a prima facie case, and of the other party to destro3r it, either by establishing a prima facie case of his own, or by reducing the probative force of the opposing case below the required standard. Should this effort succeed, the necessary consequence is that the burden or necessity rests on the first pleader to introduce additional evidence with a view to strengthening his former proof into a prima facie case, either by disproving the facts alleged against it, or by proving additional facts. If, when the evidence on both sides is all in, the pleader who has the affirmative of the issue remains with what the tribunal considers the equivalent of a prima facie case, he succeeds ; otherwise, not. The necessity for having the final tip of the scale in 1 is favor has net changed since the pleadings placed it on him, however i - :yv times the probative scales may have changed in their balance. When upon all the facts, the case is left in equipoise, the party affirming must fail.”

Then the learned author on Evidence says, under the head of '‘The Burden of Evidence Shifts,” says:

“It follows from what has been said that this burden of introducing evidence to prove or disprove a prima facie case may, and frequently does, change from one. side to the 'other. A fair test of where it rests at any particular stage of the case is to answer the question, against whom would the tribunal decide if no further evidence were introduced? Applying this test, it is obvious that at the opening of the case the burden of establishing’ and the burden of evidence rest on the' same person. Vieth v. Hagge, 8 Iowa 163, 192. Upon the establishment by him of a prima' facie case, while the burden of establishing remains, the burden of evidence is obviously shifted. Powers v. Russell, 30 Mass. (13 Pick.) 69, 77; Tolson v. Coasting Co. 6 Mackey 39; Penitentiary Co. v. Gordon, 85 Ga. 159; Ketchum v. Express Co. 52 Mo. 390. The two burdens are distinct things. One may shift back and forth with the ebb and flow of the testimony; the other remains with the party upon whom it is cast by the pleadings; that is to say, with the party who has the affirmative of the issue. Scott v. Wood, 81 Cal. 398.
“During the progress of a trial it often happens that a party gives evidence tending to establish his allegation; sufficient it máy be to establish it prima facie and it is sometimes said that the burden of proof is then shifted. All that is meant by that is, that there is a necessity of evidence to answer the prima facie case, dr it will prevail, but the burden of maintaining the affirmative of the issue involved in the action is upon the party alleging the fact which constitutes the issue, and this'burden remains' throughout the trial. Heinemann v. Heard, 62 N. Y. 448, 455. The supreme court of Texas, after saying that the fact that the negative form of the issue does not determine the burden of proving, add, 'Much less does the fact that a defendant is forced to maintain the affirmative of some fact, in disproving the plaintiff’s case, shift upon him the burden of proof.’ Clark v. Hills, 67 Tex. 141; Small v. Clewley, 62 Me. 155; Jones v. Simpson, 116 U. S. 609; Harris v. Harris, 154 Pa. St. 501.” To the same effect see Lawson, Bailments 543; 3 Am. & Eng. Enc. Law (2 ed.) 750.

In the case at bar as we have said the plaintiff averred in his petition that the death of one horse and the injury to the other was caused by the negligence of defendants and their servants; this was denied by the defendants and the further averment that the horses were unfit for the services for which they were hired. The fact that the horses were in good condition when hired and were not so returned possibly might make a prima facie case of negligence against defendants which they would be required to meet by evidence, but that prima facie case was met by evidence strongly tending to show that it was no fault of defendants that one of the horses died and the other was impaired, and that it arose from the condition of the horses when hired.

It then became the duty of the plaintiff to strengthen his prima facie case by showing the defendants were negligent or overcome the proof offered by the defendants, and when the whole evidence was in under the pleadings the greater preponderance of evidence should have been in favor of the plaintiff and the court should have charged the jury tlpat the burden of proof showing negligence was upon the plaintiff instead of the reverse. Directly in point is the case of Malaney v. Taft, 15 Atl. Rep. 326 [60 Vt. 571], wherein it is held:

“In an action on the case for negligence against the bailee of a horse for hire, the burden is on the plaintiff to prove negligence, and it is not shifted by merely showing that the horse was sound when delivered to the bailee, and when returned that it was injured in a way that does not ordinarily occur without negligence.”

A misdirection of the jury as to the burden of proof, is error for which the judgment'will be reversed at the instance of the party prejudiced thereby. McNutt v. Kaufman, 26 Ohio St. 127.

Judgment of court below is reversed for error in charge and cause remanded for new trial.  