Cummings v. Mastin , 43 Mo. App. 558 ( 1891 )

Ellison, J.

Defendant was an agister of cattle. Plaintiff delivered to him a horse and a mare to be pastured for compensation. Defendant refused to deliver on demand and was sued for the value of the animals. He recovered, and defendant appeals.

The case is before us merely on the question whether a cause of action is stated in the petition.

' The petition alleges the business of defendant; the delivery and acceptance of the animals ; the tender of price of pasturage and a demand and refusal to deliver. The objection is that the petition should have alleged negligence, general or special, on the part of defendant. We think the objection is not well taken. An agister is not an insurer (in the absence of a special contract to that effect), and is only liable for negligence. But when he or other bailee receives possession of property and fails to redeliver on demand, it is he “who should open his mouth and make an explanation to relieve himself.” Schouler on Bailments, 24. Upon proof of demand and refusal, the onus is then cast upon defendant to account for the property. In this ease there is no allegation of negligence and there is none required, as, in the first instance, negligence need not be affirmatively shown. In McCarthy v. Wolfe, 40 Mo. 520, negligence was required to be first shown by the plaintiff for the reason that he did not content himself with alleging a demand and refusal but affirmatively set up that the cattle were lost through defendant’s negligence. In Rey v. Tony, 24 Mo. 600, no question of joleading was made. The casé is on the sufficiency of the evidence.

The proper mode of procedure under a petition only alleging demand and refusal is to make proof thereof. Defendant will then show the loss of the property, as his excuse for,nondelivery. It will then devolve upon plaintiff to show that sueh loss occurred through his negligence. Winston Taylor, 28 Mo. 82; Goodfellow v. Meegan, 32 Mo. 280.

We think the petition sufficient and affirm the judgment.