Case 7.1 David v. Lose, 7 Ohio St. 2d 97, 218 N.E.2d 442, 1966 Ohio LEXIS 322, 36 Ohio Op. 2d 81 (Supreme Court of Ohio July 6, 1966, Decided)

Facts: On February 22, 1964, the plaintiff delivered his registered Tennessee Walking mare, a show horse, to the defendants' stables for breeding purposes. Plaintiff was charged a stud fee. The defendants were notified that the mare was skittish and would kick, especially if she were touched about her rear where a surgical operation had been performed on her tail. The mare was placed in a well-constructed box stall that was adjoining that of the defendant's stallion. The mare was introduced to the stallion and the stallion bit her on the neck, and the mare kicked to indicate her displeasure. She was returned to her stall. The defendant's employee left the immediate area to perform other work and a short time later heard a noise that sounded like a kick. The employee returned to the barn to find the mare with a broken leg. The mare was destroyed due to her injury. The plaintiff sued the defendants for their failure to redeliver the mare after a bailment. The defendants appealed the trial court's ruling, claiming that they were not responsible for the injury to the mare.

Issue: How can a defendant escape liability from a contract that creates a bailment?

Legal Reasoning: In order to establish a prima facie case, the plaintiff/bailor need to prove only (1) the contract of bailment, (2) delivery of the bailed property to the bailees, and (3) failure of the bailees to redeliver the bailed property undamaged at the termination of the bailment. In order for a defendant to escape liability, the bailees must then assert and prove some affirmative defense.

Court Ruling: The defendant/bailee did not provide a legal excuse (an affirmative defense) for injury to the mare and thus was responsible for failing to return the bailed property undamaged.

Questions:

1. What is bailment?

2. Was a bailment created when the mare was delivered to the defendant's stables? Provide the reasoning used to answer yes or no.

3. If the police raided the stables and the mare was injured during a search for stollen horses, would the bailee or the police be responsible for that injury?

4. Would the situation described in Question 3 be a legal excuse for the bailee failing to return the mare undamaged?