Opinion
No. 80CA0712
Decided July 15, 1982.
Appeal from the District Court of Arapahoe County, Honorable Richard L. Eason, Judge.
Gerald M. Madsen, P.C., Gerald M. Madsen, for plaintiff-appellee.
Gary S. Cohen, for defendant-appellant.
Division I.
Claiming that plaintiff, Motor Crane Service Company (the bailor), failed to establish even a prima facie case that defendant, Barker Construction Co., Inc. (the bailee), was negligent and that the damages awarded were excessive, the bailee appeals a judgment entered against it for the replacement cost of a 6,000 pound cast-iron breaker ball rented from the bailor. We affirm.
In this case the plaintiff leased the breaker ball to the defendant at a monthly rental for use in breaking rock at a quarry in the Big Thompson Canyon. The trial court properly viewed this transaction as a bailment for hire. Electrical Products Corp. of Colorado v. Mosko, 88 Colo. 447, 297 P. 991 (1931); Peterson v. Nevada Motor Rentals, Inc., 28 Colo. App. 102, 470 P.2d 905 (1970).
The trial court found, and the evidence supports the findings, that the ball was in good condition when delivered to the bailee, was broken into three or more pieces while in the possession of and being used by the bailee, was not repaired or replaced by the bailee, and was returned in pieces to the bailor. From these facts the presumption arose, and a prima facie case was established, that the damage occurred as a result of the bailee's negligence. Christensen v. Hoover, 643 P.2d 525 (Colo. 1982).
It then rests upon the bailee "`to explain the loss and exonerate [itself]; which [it] may do by showing (a) that the loss or damage was due to some special cause which ought specially to excuse [it]; or (b), more generally, that [it], the bailee, was not culpably negligent. . . .'" Nutt v. Davison, 54 Colo. 586, 131 P. 390 (1913). On such a showing, the burden then shifts back to the bailor to overcome the bailee's prima facie exoneration. Nutt, supra.
Here, the bailee claimed metal fatigue in the 20-year-old ball as a special cause of the damage and also as evidence that the ball was defective when it was delivered to the bailee. However, its expert testified that metal fatigue, if any, was only one of several possible causes for the break. Neither did the bailee succeed in its attempt to prove due care in its use of the ball. In fact, there was testimony to support inferences of lack of due care. Thus, the presumption was not rebutted, and the trial court properly held that the bailee was negligent as a matter of law.
In addition, the failure to repair or replace the broken ball and its return in pieces constituted a breach of the lease contract which contained the provision that "repairs other than normal wear and tear will be paid by the user." And, as it failed to excuse or justify the breach, the bailee was liable on this alternate claim also.
As to the amount of the damages, the evidence and the findings were that a breaker ball has virtually an unlimited life, that this ball was unique and was the largest breaker ball in the area, and that the replacement cost was $2,875.50. There was no evidence presented as to market value of the ball before its destruction, but the contract required it to be repaired. In this instance, since the ball was a total loss, cost of repair was equal to replacement cost.
Judgment affirmed.
JUDGE COYTE concurs.
JUDGE TURSI dissents.