Batesville Gin Co. v. Whitten, 50 So. 695

Batesville Gin Co. v. Whitten

50 So. 695 | Miss. | 1909

Mates, J.,

delivered the opinion of the court.

This case has been before the court twice. The first report of the case is on page 616 of 48 Southern. In the report of the first case it is shown that the reversal Was because of a peremptory instruction given for appellees. When the case was first reversed, we did not think that we should direct a peremptory instruction in favor of the gin company, because we did not know what facts a new trial might develop’, and therefore we left the case to be tried in the lower court just as though there had never been any former trial. It was our view then, on the facts of the case as they then appeared, that if there was no change on the second trial a peremptory instruction ought toi be given for the gin company. The case is returned to this court on confessedly the same facts, and it is our view that no liability is shown on the part of the gin company, and the case must again be reversed.

Before there can be any liability to appellee on the part of the gin company, it was necessary for the appellee, plaintiff below, to show some breach of duty on the part of appellant to him, whereby, because of this breach of duty, some injury has been occasioned; and this appellee utterly fails to establish. The burden was upon the plaintiff below, appellee here, to establish this breach of duty, and appellee has failed. It was not sufficient, under the facts of this case to show delivery of the cotton and failure to return, in order to make out a prima facie case against the gin company; but it was the duty of appellee to further show that the failure was because of some negligent act .on the part of the gin company. There is no such proof in this record. To begin with, it is conclusively shown that be*214fore tbe co-ttou was lost it bad been ginned, baled, and tagged in tbe customary way, and placed on tbe yard. Tbis was tbe way all tbe cotton was dealt with by tbis company. Tbe appel-lee’s wagon was there at tbe time, and tbe fact that tbe cotton was ready to be hauled away was made known to him. Tbe gin company bad tbe following notice posted in many places in tbe gin, viz.: “Notice. Not responsible for cotton left on our yard after it is baled. Batesville Gin Company.” In short, after ginning and packing, tbe cotton was held at tbe risk of the party to whom it belonged, and all parties were so notified.

Of course, even in tbis condition of affairs, it was tbe duty of the gin company not to> cause loss to tbe party who brought tbe cotton there by reason of negligence; but it is not shown in tbis case that the loss was occasioned by any want of ordinary care on tbe part of tbe gin company. It is true that, when cotton is left with ginners for the purpose of being ginned, the party to whom it belongs must have a reasonable time in which to remove it; but, because be must have tbis time within which to remove his cotton it imposed no special duty on tbe part of tbis gin company, under the facts of tbis case, beyond that of exercising ordinary care. In tbe absence of any special custom or agreement to tbe contrary, it is tbe duty of parties taking cotton to a gin to take it away from tbe gin as soon as tbe work that is intended to be done on the cotton has been performed, and if they fail to do SO' they can only bold tbe gin company liable where its negligence produces the loss.

Reversed and remanded.