96 So. 228 | Ala. | 1923
The appellee was accorded judgment against the appellant for damages for the loss of one bale of cotton belonging to appellee. The case was submitted to the jury upon the issues tendered by general traverse of the averments of counts 3 and 4 of the complaint only. Count 5 was excluded from the jury's consideration by general affirmative instruction given at appellant's instance. Counts 3 and 4 are reproduced in the report of the appeal. The court overruled appellant's demurrer to those counts.
The only ground of demurrer, which appellant insists, in brief on this appeal, was well taken to count 3, took the objection that the count, avowing the pleader's conclusion, was deficient in specification or description of the act or omission of defendant resulting in or causing the loss to plaintiff of the bale of cotton. Consideration here is confined to this, the only ground of demurrer sought to be supported in the brief for appellant. Count 3 undertook to declare upon the breach of duty arising from a bailment. This count is in case for negligence, a right of election of remedy he possessed. Davis v. Hurt,
With respect to the fourth count, there is no sufficient insistence in brief upon any theory evinced by grounds of the demurrer to count 4. It is simply remarked in brief that this count attempted to state a cause of action under the act approved August 14, 1907 (Gen. Acts 1907, p. 650), providing regulations, with penalties, for the government of public ginners. Notwithstanding there was unnecessarily included in count 4 allegations referable to that act — thereby constituting such averments material to the statement of plaintiff's case and requiring their support, at least prima facie, in the proof — this count was, in nature and character, the same as count 3.
Late in the afternoon of October 1st the plaintiff took his seed cotton to defendant's public gin, for the purpose of having it ginned and bailed. The seed cotton was delivered to the defendant's ginnery. Darkness interrupted the process of baling, after the separation of seed from the lint was completed. The baling was completed the next or the second morning thereafter, and the bale was rolled out on the gin premises. The bale disappeared. No other explanation of its loss was shown than that it had disappeared.
The undisputed evidence went to show that, though the public ginnery was operated for a reward, no charge was ever exacted for storing or keeping cotton, baled by the ginnery, on the premises. The plaintiff testified, in substance, that when the process was interrupted by darkness the defendant told him he would complete the baling the next or the second succeeding morning and that, upon defendant's proposal, he (the plaintiff) left the then uncompleted bale in the custody and care of defendant, who told plaintiff "that he would see after it as long as he [I] might want to leave it there." The defendant's testimony disputed that phase of plaintiff's evidence. According to plaintiff's stated version of the circumstances attending his leaving the bale on the ginyard — upon the defendant's proposal, made and accepted while the service for which he was to be compensated had not been completed — it could not be soundly affirmed, as a matter of law, that the defendant's relation was that of a gratuitous bailee; of which character of bailee only slight care or diligence, not ordinary care or diligence, is required for the preservation and restoration of the subject of the bailment. Prince v. Ala. State Fair,
At the instance of the plaintiff the court gave this special instruction to the jury: *314
"A gratuitous bailee of property is charged with the duty of using ordinary diligence in the care of said property."
This instruction misstated the degree of care or diligence exacted of such bailees in this jurisdiction. It was erroneously given; the measure of care or diligence exacted being slight, not ordinary. Prince's Case, supra; Thomas v. Hackney, supra. Whether a bailment of a lucrative or of a gratuitous character was created in the circumstances disclosed by the conflicting evidence was a question for the jury to determine. It is manifest that the defendant was not due the general affirmative charge on any material issue in the case.
Since it is to be anticipated that before another trial count 4 will be reformed in the aspect it appears to aver violation of the cited act of 1907, it is not necessary to consider that only partial phase of the count.
For the error committed in giving the quoted special instruction at plaintiff's request, the judgment is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.