Illinois Central Railroad v. Sims, 77 Miss. 325

Illinois Central Railroad v. Sims

77 Miss. 325 | Miss. | 1899

Woods, C. J.,

delivered the opinion of the court.

It appears that the appellee had loaned his mule to one Dixon, to be used by him, Dixon, in hauling sand, and that while so using the animal, for the purpose for which it was loaned, the injury was indicted which resulted in its death.

The case is one of injury by a stranger to a bailor’s property in the hands and care of a bailee, and the question to be determined is, if the bailee was guilty of contributory negligence in the act complained of, is his contributory negligence imputable to the bailor ?

Acting within the scope of his employment, the negligence of the agent is imputed to his principal, that of the servant to his master, and that of a bailee for_hire_to the bailor.

Why the contributory negligence of a gratuitous bailee, while using the property for the very purpose for which it was loaned, should not be imputed to the bailor who intrusted it to the bailee to be thus used, we are unable to see. There is the same privity of contract, in all essential features, as in bailment for hire, and as in engagements between principal and agent, and between master and servant.

This view is re-enforced by the consideration of another question, viz.: Could a gratuitous bailee who was guilty of contributory negligence recover in his own name against a stranger *327for an injury to property loaned ? Clearly not, for tbe defense to his complaint would be upon the surface. But the bailor and the bailee must recover, if at all, on the same facts and under the same circumstances. We have held that the bailee may, in a proper case, recover in his own name, but of course for the benefit of his bailor; or that the bailor may himself sue in his own name. Baggett v. McCormick, 73 Miss., 552. Whatever entitles to a recovery, entitles either bailor or bailee to such recovery. B converso, whatever forbids a recovery to the bailee will also defeat the bailor’s action.

The evidence offered by the appellant tended to show that Dixon, the bailee in charge of the mule, and using it in accord-anee with the terms of the bailment, was guilty of contributory negligence in the act of injury, and if this had been satisfactorily established, then this negligence must be imputed to Paul Sims, the bailor, and should defeat a recovery.

The evidence should have been submitted to the jury, that it might have passed upon the question of Dixon’s contributory negligence, and because this was not done, the case will be

Reversed and remanded for a new trial.