King-Sparrow Lumber Co. v. Stewart

95 So. 833 | Miss. | 1923

Holden, J.,

delivered the opinion of the court.

This is an appeal by the King-Sparrow Lumber Company from a judgment of the circuit court in favor of appellee, Stewart, for the value of a mule owned by'him, which died while in the possession of the appellant. The case is briefly this :

The lumber company owned a sawmill and used mule teams in hauling lumber from the mill to the railroad for shipment. They kept their mules in a lot and barn at their mill. Appellee, Stewart, who lived close to the mill, owned a mule which he desired to sell to appellant, to be used in their teams for hauling purposes. The lumber company negotiated with Stewart for the purchase of his mule, but insisted on trying the mule out to see whether she would work in a team Avith another mule in hauling the lumber wagons, with the understanding that, if the mule was satisfactory, appellant would probably purchase her from Stewart. Stewart brought the mule to the lot of appellant, and left her there to be tried out in the hauling of lumber; and appellant used the mule for about two days, with the view of determining whether the animal was suitable for hauling purposes.

While driving the mule in harness with another mule, hauling an average load of lumber from one point to another, she became sick and died. It appears nowhere in this record that the mule was overdriven, abused, or otherwise mistreated in the use of her by appellant. It is not shown what caused her death, beyond the fact that she became hot and was perspiring freely, in hot weather, and suddenly laid doAvn in the road, and died shortly after-wards. The appellant lumber company made every reasonable effort to save the mule after she was down, by sending for a veterinary surgeon, and by employing oiher means at hand, such as pouring water on the animal’s head and administering medicine to her, all of which proved unavailing. The testimony of the driver of the mule, and others, was to the effect that the mule Avas being used and handled with reasonable care, and that the condition of sickness did not result from any improper or negligent use of the animal in hauling the lumber at the time she became sick.

The appellant contends that under the undisputed proof in the case there is no liability, because the death of the mule did not result from any negligence of appellant, but that the death was due to natural causes over which appellant had no control, and it is urged that the lower court erred in not granting the peremptory instruction asked by defendant below. The opposite contention of appellee is that appellant is liable, on the ground that at the time the mule died she was being used by appellant for a purpose not authorized by appellee.

We have read the record carefully and are unable, to find any positive substantial evidence to support the contention of the appellee. The record conclusively shows that appellee left the mule with appellant for the purpose of being worked to a lumber wagon, so that appellant could determine whether she was a. suitable mule for hauling purposes before he would buy her. Appellee took the mule to the lot of appellant, left her there, and authorized the trial use, and at no time objected to hauling the lumber with her. Therefore the unfortunate loss cannot be charged against the appellant, because the death of the animal was not due to the negligence of appellant, as it is shown beyond contradiction that it was using the mule with ordinary care, such as it should have exercised with its own property, at the.time she became sick and died.

It is a case of hardship on the owner of the mule; nevertheless, under the law, the appellant is not liable for the loss, since it was not an insurer, but a mere bailee for the benefit of both parties.

Reversed, and judgment here for appellant.

Reversed.