44 So. 1029 | Ala. | 1907
The fifth, sixth, seventh, eighth, ninth, and eleventh counts of the complaint are each in
The defendants, under the allegations of the complaint, were such agents as may properly be termed “bailees for hire,” and as such were bound to ordinary diligence. As to the measure of care and diligence there can be no distinction in principle between a ginner of cotton for hire and a warehouseman for deposit and storage for hire. Where a bailee of goods, upon demand made, fails to redeliver them, or does not account for a failure to make delivery, prima facie, negligence will be imputed to him; and, the burden of proving a loss without the Avant of ordinary care is devolved upon him. As was said in Davis & Son v. Hurt, 114 Ala. 150, 21 South. 468: “The rule is founded in necessity, and upon the presumption that a party who, from his situation, has peculiar, if not exclusive, knowledge of facts, if they exist, is best able to prove them. If the bailee, to whose possession, control, and care the goods are intrusted, will not account for the failure or refusal to deliver them oh demand of the bailor, the presumption is not violent that he has been wanting in diligence, or that he may have wrongfully converted, or may wrongfully detain, them; or, if there be injury to or loss of them during the bailment, it is but just that he be required to show the circumstances, acquitting himself of the want
Tbe principle is well established and recognized that in actions for tort, as a general rule, where two or more are jointly sued as defendants, according to tbe proof, a recovery may be bad as to all, or any number less than all. But this rule is not without its exception, as,- for instance, where tbe action is in case for a negligent performance of, or a negligent failure to perform, a duty arising out of a contract, whereby .injury and damages result. In such a case tbe averment of tbe contract from which the alleged duty springs is made a material allegation of the complaint, which must be proven as charged, or else there is a fatal variance between the allegation and the proof. This doctrine is recognized in the ■case of Northern Ala. R. R. v. Mansell, 138 Ala. 548, 36 South. 459; McGhee v. Drisdale, 111 Ala. 597, 20 South. 391; Dean v. E. T. Va: & Ga. and L. & N. R. R. Co., 98 Ala. 596, 13 South. 489. In tbe counts of the complaint above mentioned, except the sixth count, the contractu-ral relation from which the alleged duty arose is averred as to all of the defandants. There was a total failure of evidence showing any contractural relation between the plaintiff and the defendant Burns. This was a fatal variance as to allegation and proof, which entitled the defendants to the general charge as requested under those counts.
In the sixth count (if the complaint the contract out of which the alleged duty arose is averred to have been made by and between the plaintiff and the defendants
The complaint contained other counts besides those we have already considered. The first and second are counts in trespass, and in Code form. On these no questions are presented. The third and fourth are counts in trover, and are in Code form. On this phase of the case, charge No. 15, requested by the defendants Hackney Bros., exacted too high a degree of proof. It is not
The evidence failed to show a general agency of the plaintiff’s son, a boy of 15 years old; and, the defendants undertaking to show that the cotton was delivered to Burns on instructions by plaintiff’s son, it was competent for the plaintiff to show that her son had no authority to give such instructions.
For the errors indicated, the judgment is reversed and the cause remanded.
Reversed and remanded.