103 S.W. 197 | Tex. App. | 1907
This is the second appeal in this case, the opinion on the first appearing in 40 Texas Civ. App. 586[
In addition to the facts stated on the former appeal, it appears that the larger of the two tents in controversy after its use at Amarillo *387 was carried to Canyon City to a Confederate reunion. Appellee Clayton either consented to its being carried to Canyon City or at least did not object. This tent received further injuries at that place and appellant sought by special charges two and three to direct the jury with reference to this issue. Special charge three was inaccurate and properly refused in that it authorized a recovery if appellee Clayton negligently permitted the tent to be carried to Canyon City and it was there injured, irrespective of whether the injuries were the result of negligence at Canyon City or not. In other words, it made appellee liable for all injuries received at that place, irrespective of their cause, if he negligently permitted the tent to be removed. The rule, as we understand it, is that the bailee is required to exercise ordinary care to preserve the property in his custody, and for his failure in this respect he is liable for the consequences of such injuries as proximately result from his negligence. The appellee in this case did not become an insurer of the tent by reason of his negligence in not preventing its removal to Canyon City, nor does the evidence indicate that he carried it there himself, thereby making him liable as for a conversion.
The second special charge, however, should have been given. By it the jury would have been instructed that if appellee Clayton failed to exercise ordinary care with respect to said property from the time the tents were received at Amarillo until they were loaded for reshipment to Kansas City and that said tents were damaged as the result of such failure, to find for plaintiff, etc. It was especially important that some such charge should have been given in view of the fact that the trial court in the third paragraph of his charge had directed a finding in favor of appellant for injuries received by the tents while they were in appellee Clayton's possession, without further directing them as to the injuries received at Canyon City, when the large tent, at least, was not in his possession. While this charge of itself might not be affirmatively erroneous or work a reversal of the case, the omission referred to emphasizes the necessity for giving the requested charge.
There was no error in placing the burden of proof on the plaintiff to establish its case by a preponderance of the evidence. It may be that proof by it that the tents were delivered to appellee in good condition and returned in a damaged condition would meet this requirement and authorize a verdict in the absence of rebutting evidence, but it does not follow from this that the court should instruct the jury that such proof upon the part of the plaintiff established aprima facie case and called for an explanation at the hands of defendant. Such would have been the effect of appellant's requested charge upon the burden of proof.
We feel constrained, also, to reverse the case for the insufficiency of the evidence to support the verdict upon the issue of delay in returning the tents and return freight charges. It is undisputed that there was a great and unnecessary delay in returning appellant's tents after the use for which they were hired, and it is practically undisputed that appellee was to pay the return freight charges. Appellee makes no explanation whatever of the delay in returning *388 the tents, and none of the failure to pay the return freights, save that he denies he was to pay the same, but understood that the committee for whom he acted had arranged with the railroad company for the freights. Appellant requests us to render the judgment in its favor upon these items, but in view of appellee Clayton's probable right to recover over against his codefendants, in whose behalf he appears to have been acting as an accommodation, we have decided that it is our duty to remand the cause as to all parties.
The question of the misconduct of the jury can hardly arise upon another trial and need not be discussed.
Reversed and remanded.
Conner, Chief Justice, not sitting.