Opinion
No. 8552.
December 24, 1957.
APPEAL FROM 11TH JUDICIAL DISTRICT COURT, JEROME COUNTY, HUGH A. BAKER, J.
Lawrence B. Quinn, J. Alfred May, Twin Falls, for appellant.
Karl Jeppesen, Boise, Gallager Gallager, Ontario, Or., for respondent.
The Court can take judicial notice of habits and propensities of animals. Cooper v. Oregon Short Line Railroad Co., 45 Idaho 313, 262 P. 873.
In a bailment for hire, the bailee must exercise ordinary care, or that degree of care which under the circumstances a person of ordinary prudence would use in reference to property of like character under his care as if it were his own property. Thompson v. Seattle Park Co., 94 Wn. 539, 162 P. 994.
Where property is in the sole and exclusive possession of the bailee and is lost or damaged, a prima facie case is made by the bailor when he shows the property was bailed to the bailee and has not been returned on demand or has been damaged, and it is then incumbent upon the bailee to show that such loss or damage was without negligence upon his part. Burt v. Blackfoot Motor Supply Co., 67 Idaho 548, 549, 186 P.2d 498.
The weight, sufficiency and probative force of the evidence on all questions of fact was properly submitted to the jury. Tonkin-Clark Realty Co. v. Hedges, 24 Idaho 304, 133 P. 669; Manion v. Waybright, 59 Idaho 643, 86 P.2d 181; Summerfield v. Pringle, 65 Idaho 300, 144 P.2d 214; 8 C.J.S. Bailments § 53(a), p. 357.
Mere conjecture and speculation cannot be indulged in to establish negligence, or proximate cause. Cooper v. Oregon Short Line R. Co., 45 Idaho 313, 262 P. 873; Antler v. Cox, 27 Idaho 517, 149 P. 731; Splinter v. City of Nampa, 74 Idaho 1, 256 P.2d 215; 8 C.J.S. Bailment § 50, p. 342.
The decision of the jury supported by substantial, though conflicting, evidence will not be disturbed on appeal. I.C. § 13-219; Buster v. Fletcher, 22 Idaho 172, 125 P. 226; Cooper v. Oregon Short L.R. Co., 45 Idaho 313, 262 P. 873; Chapman v. Booth, 71 Idaho 359, 232 P.2d 668; Preston v. Schrenk, 77 Idaho 481, 295 P.2d 272; Dunclick Inc. v. Utah-Idaho Pipe Co., 77 Idaho 499, 295 P.2d 700; Summers v. Martin, 77 Idaho 469, 295 P.2d 265.
Appellant and respondent entered into an oral contract whereby respondent agreed to furnish certain feeds and to care for and feed in its feed lots at Ontario, Oregon, appellant's herd of purebred cattle. Payment not having been made, respondent brought this action to recover the alleged agreed price for the feed furnished and the services rendered. Appellant answered challenging the amount of feed furnished and the price thereof. Appellant also counterclaimed, claiming damages for cattle injured and for cattle not returned. Plaintiff prayed for the sum of $2,926.18. Upon the trial of the cause the jury returned a verdict in favor of plaintiff-respondent in the sum of $2,525.68. Judgment was rendered in accordance with the verdict; and from such judgment appellant has appealed to this court.
Appellant does not contend that the trial judge erred in ruling on the admissibility of evidence or in his instructions to the jury. The sole contention of appellant is that the evidence is insufficient to sustain the verdict and the judgment rendered thereon.
We have examined the evidence and find that there is substantial, competent, though conflicting, evidence to sustain the verdict of the jury. It would serve no useful purpose to recite herein the evidence on the several points at issue. Pleasant Valley Irrigation Co. Ltd. v. Lord, 62 Idaho 281, 111 P.2d 640.
This cause falls within the rule that the verdict of the jury supported by substantial, competent, though conflicting evidence, will not be set aside on appeal. Section 13-219, I.C.; Gordon v. Sunshine Mining Co., 43 Idaho 439, 252 P. 870; Cooper v. Oregon Short Line R. Co., 45 Idaho 313, 262 P. 873; Macomb v. Extension Ditch Co., 70 Idaho 202, 214 P.2d 464; Bates v. Siebrand Bros. Circus Carnival, 71 Idaho 318, 231 P.2d 747; Chapman v. Booth, 71 Idaho 359, 232 P.2d 668; Preston v. Schrenk, 77 Idaho 481, 295 P.2d 272; Dunclick, Inc., v. Utah-Idaho Concrete Pipe Co., 77 Idaho 499, 295 P.2d 700.
The judgment of the trial court is affirmed. Costs awarded to respondent.
KEETON, C.J., and TAYLOR, SMITH and McQUADE, JJ., concur.