Higman v. Camody , 112 Ala. 267 ( 1895 )

McCLELLAN, J.

The bailment involved in this case was for hire and use, the letter receiving compensation for the use of his chattel by the hirer. Being thus for the mutual benefit of both parties, the law- imposed upon the bailee the 'duty of exercising that degree of care in respect of the property which a man of average prudence and diligence would bestow upon -his own like property- under like conditions, and which the law denominates ordinary care. — Schouler’s Bailments, &c., §§ 134 et seq.; 2 Am. & Eng. Encyc. of Law, pp. 54 et seq.; Woodruff v. Painter, 30 Am. St. Rep. 786; Seals v. Edmondson, 71 Ala. 590; Prince v. Alabama State Fair, 106 Ala. 340.

The care thus required of such bailee — what is meant by the phrase “ordinary care” in this connection — is aptly illustrated by Mr. Schouler, as follows : “Let us take, for example, a case by far the most familiar under this head to English and American courts, namely, that of a horse hired for use. Now, unless the bailee took the animal for too short a time, or under a special arrangement whereby the bailor was to look after his own property, he ought to provide the creature regularly with proper food and drink, afford due shelter and repose, and, in general, to take reasonable heed that the animal, while resting, is so fastened up that it may not readily run away or be stolen. While -putting the horse to active use lie should not harness carelessly, overload, overdrive, be heedless of what he perceives to be the creature's frailties, nor fail to supply, prudently, wants essential to its health and good condition. If disease or bruise be discovered during the bailee’s term, he should be discreet in its treatment, and in extremity call in some farrier or expert; or else, informing his bailor promptly, throw the responsibility, as he may generally do, upon the owner. During his whole term of use the bailee ought to act honorably, humanely, and with such reasonable regard for preserving the animal’s value unimpaired as from prudent men might be expected.” Schouler’s Bailments &c., § 137. As the particular point involved appears to have a close application to one phase of the case at bar, we quote further, in illustration of the care required of bailees of this sort, from the Supreme Court of Georgia“The hirer of a horse is bound to take the same caré of it that a prudent man would of his own property; and is responsible for all injuries that result from his neglect. If the horse become sick, or exhausted, it is his duty to abstain from using it, and if he pursues his journey he is liable for all the injury occasioned thereby. — Story on Bailments, §405. In this case, the horse hired loy the defendant was discovered to be sick, and the attention of the hirer called to that fact, while he had as yet accomplished but a small portion of his journey. He then ought to have abstained from the further use of the horse in that condition. As he did not, but continued the journey, and the horse died at the end of it, the defendant is liable.” Thompson v. Harlow, 31 Ga. 348.

In an action by a bailor against a bailee for the destruction of, or injuries to, the chattel while held under the bailment, through the negligence of the latter, the burden of proof shifts from one side to the other and rests with plaintiff or the defendant upon the development of the circumstances in the evidence. It is, of course, on the plaintiff to show the bailment, that the defendant took the property under it and returned it in a damaged condition, or did not return it at all. It is also, it seems, with him to show the condition of the chattel when it was delivered to the defendant. If the property was in good condition for the uses of the bailment, and it is not returned or returned in an injured state, or, if though there be an infirmity or defect in the chattel, but the injury sustained by it is not of a character attributable to such defect — as, for instance, where a leaky boat is let and is injured by an explosion of gunpowder — the burden is on the bailee, since, in either of the cases put, the injury would not have happened in the ordinary course of things had he been duly prudent and diligent, not indeed to acquit himself of all negligence but, to show1 a cause producing the injury which prima facie did not arise or result from or operate on account of a want of ordinary care on his part. This being done, the burden shifts back to the plaintiff to affirmatively show some causal negligence on the part of the defendant. To illustrate : the hirer of a boat loses it in a storm of sufficient severity to have probably caused the loss without fault on his part. He acquits himself of negligence prima facie by showing these facts, and throws the onus on the letter to prove that notwithstanding the storm the boat would not have been lost but for defendant’s negligence in going out in the storm, or, being out, his want of care and diligence in handling the boat. And in such case it is with the plaintiff to reasonably satisfy the jury by a preponderance of evidence that not the storm alone, but the failure of the defendant to act with prudence and diligence in view of the storm caused.the loss. — Schouler’s Bailments &c. § 23; Collins v. Bennett, 46 N. Y. 490; Boies v. H. & N. H. R. R. Co., 9 Am. Rep. 347; Woodruff v. Painter, 30 Am. Dec. 786; Seals v. Edmondson, 71 Ala. 509, supra; Prince v. Ala. State Fair, 106 Ala. 340, supra.

The bailment here was of a barge belonging to plaintiff for use by the defendant in transporting logs on the Tennessee river. It seems that the hiring was for one trip only and that the injury complained of was sustained during a second trip. The letter, however, accepted compensation for the use of the vessel on this second trip, so that, the case stands as if the original letting had been for both trips. The evidence is conflicting as to the condition and river-worthiness of the barge when it was let and delivered to the defendant, and the jury might have reached either conclusion, that it was, or that it was not, in proper condition. There is no conflict in the evidence showing serious injuries to the barge, and that they were sustained during the sec•ond voyage. Tliey were of a character which ordinarily would not have been suffered had the barge been in’ good condition when it was let to defendant and had the defendant and his employes been prudent and diligent in the use of it. Assuming, as the jury had a right to find, that the condition was good, the prima facie presumption on these facts was that the injuries complained of resulted from defendant's 'negligence. Charge 1, given for defendant, is bad in view of these facts and this principle. Its effect was to put the burden on plaintiff to show negligence on the part of the defendant •even though the jury should have 'concluded that the barge was in proj>er condition when delivered to the bailee.

When the barge was being unloaded after the first trip a dangerous leak in it was discovered by defendant's employes in charge of it. This discovery, being made by the employes in the line of their service, stands upon the same footing for all purposes in the case as if it had been made by the defendant himself : their knowledge of it was his knowledge. — Pepper v. George, 51 Ala. 190; Birmingham Trust & Sav. Co. v. La. Nat. Bank, 99 Ala. 379; Ala. Nat. Bank v. Halsey, 109 Ala. 196.

With this knowledge of a defect arising after the letting defendant had no right to further rely upon plaintiff's statement made at the time of the letting that the barge “was all right,” nor to indulgaa presumption, against the supervening fact, that it was ' all right. Charge 3 given for defendant was, therefore, erroneous.

The discovery of this leak and defendant's constructive knowledge of it make the analogy between this case and that of Thompson v. Harlow, 31 Ga. 348, where the bailee continued his journey after having knowledge that the horse he had hired and was riding was sick. As the rider should have abstained from continuing his journey on this horse, and been' “discreet in his treatment” of the horse, and called in a farrier or expert, if •unable to properly administer to the animal’s ills himself ; or else,' should have promptly informed his bailor of the horse’s sickness, and was guilty of negligence in not so doing, so here, the defendant, upon coming to a knowledge of this dangerous leak in the barge, which had been sprung after it came into his possession, should have discontinued its use and repaired the boat himself, or have informed the plaintiff of the fact and put the responsibility on him ; and doing nothing of this, and continuing to use the boat in its dangerously defective condition, he was clearly guilty of negligence. And this would be equally true though the jury should find that the condition of the barge in oiher respects than this leak was bad at the túne it came to defendant, for though one hire a blind horse, he should desist from the use of him if he should have an attack of colic, or should sprain a leg in consequence of being blind, and for injuries resulting from the continued use of the horse with colic or with a crippled leg he would be responsible. On these considerations we hold that charges 2, 4, 5, 6, 7, 11 and 12 should have been given for the plaintiff. Charges 2 and 4 given for defendant are bad and should have beeiT'refused because they take no account of defendant’s negligence ixi using the barge at all after discovering its dangerous coxiditioxi consequent upon the springing of this leak. Charge 2 of defexxdaxit’s series, moreover, is bad for .taking a distinctioxi betweexr the effect of defendant’s knowledge of the condition of the barge, and that of his employes.

There was evidence of improper loading of the barge by the defendant ixi that logs were piled at one end of it axid it was left in this coxiditioxi for several days of very rainy weather and until it sunk, the unequal distribution of the burden having the effect to depress that end of the boat, the weight then being constantly increased by leak and rain water flowing into the depression. But we do not understand that any further loading was done after the submergence of that end of the boat was indicated, or that any further use was made of the barge by defendant before it sunk. < We can not, therefore, say that charge 9 should have been given for plaintiff, or charge 3. Of course it was negligence for defendant to load the barge in this way and leave it to fill with water at the depressed end and sink ;■ but it is to be assumed that the jury were so instructed on the hypothesis of their belief from the evidence that this was done. And, of course also, the duty was on the defendant, and his employes, persisting, as the evidence goes to show he did, in using the barge after • discovering the leak, to handle it with due regard to that fact and the danger of loss or injury to the property incident to it.

The defendant should not have been allowed to prove the instructions he gave to Neville “when sent to hire the barge the second time, ’ ’ in the absence of notice to plaintiff of such instructions. — Birmingham Savings & Trust Co. v. La. Nat Bank, 99 Ala. 380.

There was no error in excluding the proposed testimony of Smith that “greater care should be exercised in loading a barge devoid of rift bolts.” This was matter of inference for the jury from the-absence of such bolts in this barge and the testimony as to their utility, &c. &c.

Reversed and remanded.