271 F. 668 | 8th Cir. | 1921
January 17, 1917, appellant shipped on revenue billing from Cushing, Okl., to St. Eouis, Mo., a tank car load of gasoline routed over the linea of the A., T. & S. E. Ry. and Missouri Pacific Ry. The tank car in which the gasoline was shipped was owned by appellant, and under the tariff provisions of the railways it was entitled to receive three-fourths of a cent per mile on loaded movements of the tank car. Instead of delivering the car and contents to the consignee at St. Eouis, the Missouri Pacific Railway, then being operated by a receiver, tendered the car to the Wiggins Perry at St. Louis, on March 18, 1917, which in turn delivered the same to the Clover Leaf Railway, with copy of waybill of another car showing destination Avon-dale, N. J. The car and contents were transported to Avondale, and
“The bailee is liable ior loss resulting from breach of his contract to keep the property in a particular manner or at a particular place, or to use it only for a particular purpose or to a specified extent, or in a particular manner, or to return it at a particular time, or other special stipulation in regard, to the property, without regard to whether he has been negligent.” 6 C. J. § 42. Kennedy v. Portman, 97 Mo. App. 253, 70 S. W. 1099; Lilley v. Doubleday, 7 Q. B. D. 510; Butler v. Greene, 49 Neb. 280, 68 N. W. 496; Ferguson v. Porter, 3 Fla. 27; Evertson v. Frier (Tex. Giv. App.) 45 S. W. 201; Cartlidge v. Sloan, 124 Ala. 596, 26 South. 918; Carll v. Goldberg, 59 Misc. Rep. 172, 110 N. Y. Supp. 318; Cochran v. Walker (Tex. Giv. App.) 49 S. W. 403; J. T. Stark Grain Co. v. Automatic Weighing Mach. Co., 99 S. W. 1103.1
“The circumstance that the property is in the hands of the bailee, with the •license of the owner to use it for one purpose, gives no right to use it for another; and the invasion of the owner’s right of property is as complete when the bailee goes beyond his license and duty as if the control over the property were usurped without any bailment. Consequently, it may be stated generally, that if the thing is used for a different purpose from that which was intended by the parties, or in a different manner, or for a longer period, the hirer is not only responsible for all damages, but if a loss occurs, although by inevitable casualty, he will generally be held liable therefor.” 3 R. C. L. p. 109. State v. State Journal Co., 75 Neb. 275, 106 N. W. 484, 9 L. R. A. (N. S.) 174, 13 Ann. Cas. 254; Woodman v. Hubbard, 25 N. H. 67, 57 Am. Dec. 310; Klug v. Sheriffs, 129 Wis. 468, 109 N. W. 656, 7 L. R. A. (N. S.) 362, 116 Am. St. Rep. 967, 9 Ann. Cas. 1013; McCurdy v. Wallblom Furniture & Carpet Co., 94 Minn. 326, 102 N. W. 873, 3 Ann. Cas. 468; Cobb v. Wallace, 5 Cold. (Term.) 539, 98 Am. Dec. 435; Swift v. Moseley, 10 Vt. 208, 33 Am. Dec. 197; Towne v. Wiley, 23 Vt. 355, 56 Am. Dec. 85; Ray v. Tubbs, 50 Vt. 688, 28 Am. Rep. 519; Crocker v. Gullifer, 44 Me. 491, 69 Am. Dec. 118; Graves v. Smith, 14 Wis. 5, 80 Am. Dec. 762; Stewart v. Davis, 31 Ark. 518, 25 Am. Rep. 576; Palmer v. Mayo, 80 Conn. 353, 68 Atl. 369, 15 L. R. A. (N. S.) 428, 125 Am. St. Rep. 123, 12 Ann. Cas. 691.
The bailee of a horse for hire has been held liable in an action of trover, when, after hiring him to be driven to one place, he.drives him to a different one, without the consent of the owner. Rotch v. Hawes, 12 Pick. (Mass.) 136, 22 Am. Dec. 414; Woodman v. Hubbard, supra; Malaney v. Taft, (50 Vt. 571, 15 Atl. 326, 6 Am. St. Rep. 135. In the case at bar as the property bailed was returned, there is no question of trover or conversion. There is no defense made by the railway company that its action in sending the car to Avondale, N. J., instead of St. Rouis, was not due to the want of ordinary care on its part. Both sides seem to treat the case as if the railway company was negligent, although from the authorities heretofore cited the question of negligence would seem to be immaterial. We are of the opinion that the record clearly shows a liability on the part of the railway •company for the damages claimed.
.The judgment below- therefore: is reversed, with directions to the trial court to enter judgment in favor of appellant.
Reported in full in the Southwestern Reporter; reported as a memorandum decision without opinion in 81 Ark. 609.