# Hillend v. Koltsch and Frink > Oregon Supreme Court · March 30, 1948 · 183 Or. 460 URL: https://www.frixlaw.com/law-library/cases/3837574 ## Case - **Full name:** Hillend v. Koltsch and Frink - **Court:** Oregon Supreme Court - **Decided:** March 30, 1948 - **Citations:** 183 Or. 460; 193 P.2d 927; 192 P.2d 274; 1948 Ore. LEXIS 177 - **Precedential status:** Published - **Opinion:** Addendum by Kelly - **Judges:** Bailey, Belt, Brand, Keiey, Kelly, Lusk, Rossman - **Cited by:** 1 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3837574 ## Opinion text *470 KELLY, J. Defendant has filed a petition for rehearing in support of which two grounds are urged: (1) That there is no evidence of negligence on the part of defendant, and that, as a matter of fact, defendant was free therefrom; and (2), that apparently this case was decided on the basis that the law raises a presumption in favor of the plaintiff by showing delivery to the defendant in good condition and a return in bad condition. As to the first ground, namely, that there is no testimony tending to prove negligence on the part of defendant, it is shown that the landing of the plane was made upon a lake. If it had landed on the ground, obviously, the damage it sustained by sinking in water would not have occurred. Moreover, Mr. Clyde Winchester, who was an occupant of the plane on the trip in suit, was called as a witness by defendant and testified that at the time of the landing the bank of the lake was probably around from five, maybe three feet above the water’s edge; and Mr. Winchester further testified that he believed that it would have been possible to have towed that plane out and towed it up on dry land at that point. Mr. Winchester was cross-examined by plaintiff’s attorney upon the method of saving the plane from material damage and we quote from that part of the cross-examination: “Q How did you get from the plane to the shore ? A Via the ice. Q Then there wasn’t open water between the plane and the shore, was there? A We circled back up north, followed the edge of the ice to where the ice--— *471 Q But there was ice between the plane and the shore? A Ten feet of it, yes: maybe twenty feet at the most. Q Well, how could the plane have been towed out then up to dry land up to over this four-foot bank? A A very simple maneuver. Q What? A A very simple maneuver. Q Well how? A I imagine a cable attached to the plane could have dragged it from the bank. Q Let’s not have what you imagine. Let’s have what you know. A It would be my method of operation. Q How thick was the ice where the plane went through? A Three to three and a half inches probably. Q You say there was an open space between the plane and the shore ? There was also ice between the open space and the shore? A Just as I said, about ten maybe twenty feet. Q Yes. And your method would have been just to tie a cable to the plane and yank it right up to the bank? A I think I would have broken the ice so that it wouldn’t have damaged the plane.” As stated, Mr. Winchester was one of the passengers in the plane on its trip that ended on Lake Klamath. He was immediately available to defendant. Instead of enlisting his services in salvaging the plane, appealing defendant merely left the plane in the water of the lake and sent a telegram to plaintiff. Seasonable minds might differ, but the jury could have found that defendant was negligent in taking the course that he did after the plane had been brought to rest upon the ice. *472 On the second ground urged as a reason for granting a rehearing, namely, that apparently the court applied the presumption of negligence on the part of a bailee that when delivery of the article in good condition is shown and failure to redeliver it or redelivering it in an impaired and damaged condition is shown. This court has announced that principle of law in Hansen v. Oregon-Washington R. & N. Co., 97 Or. 190 , 188 P. 963 , 191 P. 655 . * * * “In the ordinary case, according to the weight of modern authority, the bailor meets this burden where he supports the allegations of his complaint by proof of a delivery of the property to the bailee under a contract of bailment and the latter ’s failure or refusal to return it on demand. Most of the courts say that this constitutes a prima facie case or is prima facie proof of the bailee’s liability. In actions based on negligence, an inference of negligence on the part of the bailee may be drawn from such proof, and the courts often say that it constitutes presumptive evidence of negligence, or that a presumption of negligence arises. ’ ’ Excerpt from 6 Am. Jur. Sec. 371, p. 449. In marginal note 19, ibid, the citation includes Hansen v. O. W. B. & N. Co., supra, and other authorities. As to the second ground urged in appealing defendant’s motion for rehearing, namely, that apparently this case was decided on the basis that the law raises a presumption in favor of the plaintiff by showing delivery to the defendant in good condition and a return in bad condition, the testimony, above quoted, ■of witness Winchester refutes the suggestion that only the presumption mentioned above supports the verdict of the jury. The United States Supreme Court has announced the effect of the presumption under discussion in the *473 case of Commercial Molasses Corporation v. New York Tank Barge Corporation, 314 U. S. 104 , 62 Sup. Ct. Rep. 156, 86 L. Ed. 89 . The federal supreme court’s holding in regard to such presumption or inference is well epitomized iñ paragraph 13 of the syllabus of that ease as follows: ‘ ‘ The inference which may be drawn unfavorable to bailee upon bailor’s establishing the unexplained failure to deliver goods safely does no more than require the bailee, if he would avoid the inference, to go forward with evidence sufficient to persuade that the nonexistence of the facts, which would otherwise be inferred, is as probable as its existence and it does not cause the burden of proof to shift.” The statement last above quoted is in harmony with and adds the highest authority to and support of the construction and effect of that presumption as announced in Hansen v. O. W. R. & N. Co., supra. In the case at bar, appealing defendant’s witness Mr. Winchester in his testimony, above quoted, instead of refuting the presumption of negligence on appealing defendant’s part, expressly placed before the jury testimony from which alone the jury could and apparently did find that appealing defendant was negligent in failing to salvage the plane in suit. The motion for rehearing is denied. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3837574. Public record. Not legal advice.