Motor Crane Service Co. v. Barker Construction Co. , 1982 Colo. App. LEXIS 787 ( 1982 )

TURSI, Judge,

dissenting.

I respectfully dissent.

Defendant, Barker, rented a cast-iron breaker ball from plaintiff, Motor Crane, to break rock. Barker failed to pay the agreed rental and subsequently returned the broken parts of the ball. Motor Crane filed suit for unpaid rent and for negligent destruction of the breaker ball. Barker’s answer generally denied liability and, among various affirmative defenses and counterclaims, alleged that the breaker ball was not suited for the known anticipated use.

Trial was to the court without a jury. The trial court entered judgment for Motor Crane on the claim of damage to the breaker ball and for part of the claimed rent. It concluded that the failure to return the breaker ball in the condition received raised a presumption of negligence against Barker. Barker does not appeal the judgment for accrued rent or the dismissal of its counterclaims.

Barker claims that the trial court erred in failing to dismiss Motor Crane’s negligence claim for failure to present any evidence that the damage to the breaker ball was, or could have been, caused by negligence. I agree.

The trial court’s application of the traditional rules of bailment for hire is inappo-site. Motor Crane was not paying Barker to safe-keep the breaker ball. Rather, Barker was paying Motor Crane for the use of a chattel purportedly suitable to break rock. The mutual rights and liabilities of bailors and bailees, at common law, turn essentially upon the direction of recompense. See generally Schouler’s Bailments and Carriers, § 14 (3rd ed. 1897).

Here, the sole evidence is that Barker did use the breaker ball in the manner and purpose for which it was leased. And, whether called bailee or lessee, Barker had the right to rely upon an implied warranty that the ball was reasonably suited for the intended use. Eastern Motor Express, Inc. v. A. Maschmeijer, Jr., Inc., 247 F.2d 826, 65 A.L.R.2d 765 (2d Cir. 1957); Price Boiler & Welding Co. v. Gordon, 138 F.Supp. 43 (E.D. Mich. 1956).

The presumption which the trial court raised in favor of Motor Crane is akin to the presumption of negligence raised in res ipsa loquitur situations. However, as in res ipsa loquitur, the presumption does not apply where, on proof of the occurrence without more, the matter still rests on conjecture alone, or the damage can just as easily be attributed to other causes. Branco Eastern Co. v. Leffler, 173 Colo. 428, 482 P.2d 364 (1971). Thus, since Motor Crane failed to introduce any evidence that the damage to the breaker ball would not have occurred, but for negligent or purposeful misuse, it was not entitled to the presumption of negligence relied upon by the trial court.

I would therefore reverse the judgment insofar as it awarded damages for the destruction of the breaker ball.