(dissenting).
I dissent. The plaintiffs’ complaint alleges that they left their automobile at the defendants’ place of business; that it was destroyed by fire, and that such fire was caused by the negligence of the defendants in that they allowed welding to be done on the premises in the presence of inflammable and explosive fuel and fumes, causing the building to be burned and the automobile of the plaintiffs to be totally destroyed.
Not one of these allegations of negligence on the part of the defendants was proved by the plaintiffs. In fact, after all of the evidence had been submitted, the trial court could find no evidence of negligence on the part of the defendants. One of the court’s findings states:
“That the Court finds no direct evidence of negligence on the part of the Defendants or any employees.”
In spite of the total failure of the plaintiffs to produce any evidence of negligence on the part of the defendants, however, the court goes on to find:
“The Court’s view of the evidence is that there is a greater probability that the fire was caused by the negligence of the Defendants than from a cause for which the Defendants were not responsible.”
It was on this later finding that the court based its judgment for the plaintiffs.
If there ever was a decision of this court that completely ignores all precedent on the subject of negligence and burden of proof, a decision that is based entirely upon surmise and conjecture, the majority decision in this case is such a decision. This court repeatedly has held that, in an action based on negligence, the plaintiff has the burden of proving that the defendant was responsible for some negligent act or omission, and that such act or omission was the proximate cause of the injury of which the plaintiff complains. Farmers Home Mutual Insurance Co. v. Grand Forks Implement Co., 79 N.D. 177, 55 N.W.2d 315; 38 Am.Jur., “Negligence,” Sec. 285, p. 975; 65 C.J.S. Negligence §§ 208, 209, pp. 964, 970. The majority decision wholly wipes out any requirement that the burden is upon the plaintiff to establish not only the defendant’s negligence, but that the defendant’s negligence was the proximate cause of the plaintiff’s injury.
The majority attempt to avoid basing their decision on a finding that there is a greater probability that the fire was caused by the negligence of the defendants than from a cause for which defendants were not responsible, and they do so by the simple device of playing on words. They come to the same conclusion as the trial court and reach the same result, but they carefully avoid using the trial court’s words in doing so. They concede that the plaintiffs have the burden of proof — which in this case they have wholly failed to sustain — but they avoid reaching the logical result of the plaintiffs’ failure to sustain their burden of proof merely by saying, “ * * * we find the plaintiffs have sustained the burden of proof.” There is absolutely no evidence in the record on which to base such a finding. The only evidence of negligence on the part of the defendants, other than an inference of negligence arising from the fact that the defendants were in actual possession of the shop, is found in the fact, as the majority point out, that one of the defendants testified on cross-examination that fires in such a business as a body shop may or may not occur depending on the care that is exercised. In other words, the majority base their decision on the same reasoning as did the trial court: that, although the cause of the fire cannot be established, there is a greater probability that it was caused by the negligence of the defendants than from some cause for which the defendants were not responsible, al*707though they avoid saying so in express language.
The result of the majority opinion in this case, which is contrary to all previous decisions of not only our court but of the vast majority of courts in other jurisdictions, is to make the operator of a body repair shop an insurer of all automobiles left with him unless he can affirmatively show that the fire resulted from a cause for which he is not responsible. In other words, the majority opinion places upon the operator of a body shop the burden of showing not only that he used due care, but he must show what caused the fire, and that such cause was not due to his negligence. If, as in this case, the cause of the fire is unknown, he is held responsible. This makes the operator of such shop an insurer, and is clearly contrary to the general rule adopted by the majority of the courts in this country. 8 C.J.S. Bailments § 27 a (1), p. 401, at 406.
The trial court was frank and honest in the appraisal of the evidence, and found that there was no evidence of negligence. However, he did order judgment for the plaintiffs on the theory that:
“ * * * there is a greater probability that the fire was caused by the negligence of the Defendants than from a cause for which the Defendants were not responsible.”
The majority also find for the plaintiffs, but they pretend to find evidence of negligence which the trial court did not find, and which a careful reading of the evidence does not disclose. The trial court, who had the witnesses before him and heard their testimony and saw their demeanor on the stand, was compelled to find that there was no evidence of negligence.
When the plaintiffs introduced evidence of the delivery of their automobile to the defendants for repair, and further showed the failure of the defendants to redeliver on demand, they placed upon the defendants the burden of going forward with the evidence. That burden required them to show ordinary care on their part in the operation of the shop and in the safekeeping of plaintiffs’ automobile. A careful reading of the evidence will show that the defendants fully sustained that burden. Ordinary care on the part of a repair shop, under the circumstances in this case, required the defendants to show, not that they had used the utmost care that could be exercised under the circumstances, but that they had exercised such care as a reasonably prudent operator of a body shop would use in conducting the business of a repair shop under similar circumstances. The defendants have fully sustained this burden. In going forward with the evidence, they showed that all of the rags used in their business were kept in covered metal containers and picked up once a week by a laundry service; that refuse and other combustible materials were kept in a trash container outside of the shop; that a number of fire extinguishers were kept in various locations throughout the shop; that paint thinners were kept in closed containers and stored in a steel locker; that there was no fire in the shop on the day of the fire and that the gas water heater had not been used on that day; that the shop did not use gasoline for cleaning vehicles prior to painting because it was considered too flammable and that it was not as satisfactory as commercial solvents which were fire resistant; that the acetylene welder had been repaired but a short time priqr to the day of the fire; that fire-resistant walls had been installed in the paint room; that a part of the building had been rewired and that the wires in such portion of the building were placed in a steel conduit; that floors in the work areas of the paint and body shop were made of concrete ; that the shop was cleaned at the beginning of each work day and then washed down with a hose, and that this procedure had been followed on the morning of the fire; and that, in fact, all safety measures which had been recommended to them by the safety division of the North Dakota Workmen’s Compensation Bureau had been fully complied with by the defendants.
*708The majority opinion cites the proper rules and then fails to apply them. The decision overturns all previous decisions not only in this State but the decisions in a large majority of the jurisdictions on the subject of negligence and proximate cause. It is, in my opinion, a decision which cannot be sustained on the record before us.
I would reverse the judgment of the district court and order judgment for the defendants.