The law recognizes this as a legal excuse for failure to redeliver the bailed property undamaged, 8 American Jurisprudence 2d, Bailments, Section 177. However, the burden of proof on the issue of the bailees' conduct remains with the bailees throughout the trial, Hanlon v. J.E. Miller Transfer Storage Co. (1948), 149 Ohio. St. 387, at 389 and 391; 8 American Jurisprudence 2d, Bailments, Section 311; 7 Ohio Jurisprudence 2d, Bailments, Section 42. The law on the burden of proof on the issue of negligence in contract cases should be contrasted with that in negligence cases where the bailor, even when proceeding on the basis of res ipsa loquitur, has the burden of proof on the issue of negligence throughout the trial, 8 American Jurisprudence 2d, Bailments, Section 310; 7 Ohio Jurisprudence 2d, Bailments, Section 41. The rule in contract cases is stated in the fourth paragraph of the syllabus of Agrcultural Ins. Co. v. Constantine, supra, as follows:
With only slight deviation, the courts have held that the plain and unambiguous language of the Act had the effect of changing the common-law rule to place the burden upon the warehouseman to show that in the exercise of ordinary care, he is unable to redeliver the bailed goods. Leckie v. Clemens, 135 Md. 264, 108 A. 684; Federal Compress Warehouse Co. v. Coleman, 143 Miss. 620, 109 So. 20; Rudy v. Quincy Market Cold Storage Warehouse Co., 249 Mass. 492, 144 N.E. 286; Traders Compress Co. v. Precure, 140 Okla. 40, 282 P. 165, 71 A.L.R. 759; Hanlon v. J.E. Miller Transfer Storage Co., 149 Ohio St. 387, 79 N.E.2d 220; Brenton v. Sloan's United Storage Van Co., 315 Ill. App. 278, 42 N.E.2d 945; Caldwell v. Skinner, 100 Kan. 567, 164 P. 1166; Alabam's Freight Co. v. Jiminez, 40 Ariz. 18, 9 P.2d 194; George v. Bekins Van Storage Co., Cal.App. 196 P.2d 637. Speaking of the Uniform Act, the California Court in Wilson v. Crown Transfer Storage Co., 201 Cal. 701, 258 P. 596, 599, stated that "the design of the act was to remove the confusion or uncertainty arising from conflict of statutes or decisions among the several states and to make plain and general the controlling rules of law. * * * It would be difficult to give a reasonable construction to the statute without attributing to it the force of placing the burden of proof for failure to deliver on the warehouseman."
In such circumstances plaintiff can sue in assumpsit or in contract, as well as in tort, for defendant's failure to make delivery. Hanlon v. J.E. Miller Transfer Storage Co., 149 Ohio St. 387. Exception 17 is overruled. Under point VIII, which is based on exception 19, defendant contends that the trial justice erred in refusing to instruct the jury that if plaintiff rescinded the 1953 contract, it cannot recover against defendant in this action unless it offered to return all merchandise received by it thereunder.
But Section 526 is in pari materia with Section 511 and must be construed in connection with that section and the other provisions of the Uniform Act. Among the cases from other jurisdictions in accord with our conclusion are the following: Caldwell v. Skinner, 1917, 100 Kan. 567, 164 P. 1166; Rudy v. Quincy Market Cold Storage Warehouse Co., 1924, 249 Mass. 492, 144 N.E. 286; Federal Compress Warehouse Co. v. Coleman, 1926, 143 Miss. 620, 109 So. 20; Traders' Compress Co. v. Precure, 1929, 140 Okl. 40, 282 P. 165, 71 A.L.R. 759, former appeal 107 Okl. 191, 231 P. 516; New Jersey Mfrs.' Ass'n Fire Ins. Co. v. Galowitz, 1930, 106 N.J.L. 493, 150 A. 408; Alabam's Freight Co. v. Jiminez, 1932, 40 Ariz. 18, 9 P.2d 194; Kline v. Sinton Transfer Co., 1933, 215 Iowa 943, 247 N.W. 215; Price Pierce v. Jarka Great Lakes Corp., D.C.Mich. 1941, 37 F. Supp. 939 (involving Michigan Uniform Act); Hanlon v. J. E. Miller Transfer Storage Co., 1948, 149 Ohio St. 387, 79 N.E.2d 220; Denning Warehouse Co. v. Widener, 10 Cir., 1949, 172 F.2d 910, 13 A.L.R.2d 669 (involving New Mexico Uniform Act); George v. Bekins Van Storage Co., 1949, 33 Cal.2d 834, 205 P.2d 1037; Colgin v. Security Storage Van Co., 1950, 208 La. 173, 23 So.2d 36, 160 A.L.R. 1107; Hanson v. Wells Van Storage Co., 1950, 100 Cal.App.2d 332, 223 P.2d 509; Arkwright Mills v. Clearwater Mfg. Co., 1950, 217 S.C. 530, 61 S.E.2d 165; Cody v. Miller, 1952, 91 Ohio App. 36, 102 N.E.2d 727, appeal dismissed 156 Ohio St. 246, 102 N.E.2d 19; Gutknecht v. Wagner Bros. Moving Storage Co., Mo. App. 1954, 266 S.W.2d 19; Cole v. Younger, 1954, 58 N.M. 211, 269 P.2d 1096. In Caldwell v. Skinner, supra [ 100 Kan. 567, 164 P. 1167], the Supreme Court of Kansas, in resolving a question similar to that here presented, had this to say:
Id., citing Hanlong v. J.E. Miller Transfer Storage Co. (1948), 149 Ohio St. 387, 389, 79 N.E.2d 220. {¶ 22} Thus the question is not whether Williams established negligence, but whether Kaeser established a legal excuse for its breach of contract — failing to redeliver Williams's car undamaged.
"Fire cannot be considered, in itself, an unavoidable danger, and in case of loss from that cause, the carrier is bound to show the origin or cause of the fire, to bring himself within the exception; otherwise, the presumption is, it might have been avoided by proper care." As we find no difference in the meaning between Section 8464, General Code, and Section 1323.10, Revised Code, we are of the opinion that Hanlon v. J. E. Miller Storage Co., 149 Ohio St. 387, 79 N.E.2d 220, is just as conclusive as it was before the revision in Section 1323.10, Revised Code. It was decided by a unanimous court. The third paragraph of the syllabus of the Hanlon case is as follows:
It is expressly provided by Section 1323.10, Revised Code, that, "in case the warehouseman refuses or fails to deliver the goods in compliance with a demand by the holder or depositor * * *, the burden is upon the warehouseman to establish the existence of a lawful excuse for such refusal." That statute was construed in Hanlon v. J. E. Miller Transfer Storage Co., 149 Ohio St. 387, 79 N.E.2d 220, wherein it is stated in the first and second paragraphs of the syllabus: "1. Under the provisions of Section 8464, General Code [Section 1323.10, Revised Code], when a warehouseman refuses or fails to redeliver goods in compliance with a proper demand by the holder or depositor, the burden is on such warehouseman to prove the existence of a lawful excuse for such refusal or failure.
It then falls upon the warehouseman to plead and prove that he exercised the care required of him by the statute and that the loss was not due to his negligence. Denning Warehouse Co. v. Widener, 10 Cir., 172 F.2d 910, 13 A.L.R.2d 669; Federal Compress Warehouse Co. v. Coleman, 143 Miss. 620, 109 So. 20; Rudy v. Quincy Market Cold Storage Warehouse Co., 249 Mass. 492, 144 N.E. 286; Hanlon v. J. E. Miller Transfer Storage Co., 149 Ohio St. 387, 79 N.E.2d 220. As the foregoing relates to the pleadings before us, the first count of the petition, which sets forth failure on the part of the warehouseman to have metal doors, sprinkler system, etc., attempts to plead negligence.
The Supreme Court, in 144 Ohio St. 275, 58 N.E.2d 658, affirmed the judgment of the Court of Appeals in the Constantine case. The plaintiffs cite also Hanlon v. J. E. Miller Transfer Storage Co., 149 Ohio St. 387, 79 N.E.2d 220. It is the contention of the plaintiffs that, under the doctrine of the Constantine and Hanlon cases, the burden, under the facts in this case, was on the defendant to prove by a preponderance of the evidence that the loss was not due to the defendant's failure to exercise due care. In the Constantine case our Supreme Court, on page 285, held:
By the terms of that contract, Falbo was entitled to have his grader at the end of ten days' use, unless it could be shown that some lawful excuse existed for a failure to redeliver it to Falbo. Agricultural Ins. Co. v. Constantine, 144 Ohio St. 275, 58 N.E.2d 658; Hanlon v. J. E. Miller Transfer Storage Co., 149 Ohio St. 387, at page 391, 79 N.E.2d 220. By the terms of the contract herein, the operator was employed by Falbo, but under the express control and direction of the County.