Weller & Co. v. Camp

52 So. 929 | Ala. | 1910

SAYRE, J.

In Posey v. Hair, 12 Ala. 567, it was said that the certainty required in declaration, or plea, is such a statement of the facts constituting the cause of action, or ground of defense, as will enable them to be understood by the party who is to answer them, the jury who are to ascertain their truth, and the court which is to give judgment. The latter statute (Code, § 5321), which enjoins brevity as far as consistent with perspicuity, and the presentation of facts in an intelligible form so that material issue in law or fact can be taken thereon by the adverse party, has not impaired the substance of the requirement stated in the early cases, though it may be admitted that in some late cases the limit has been reached in permitting the allegation of mere conclusions. No fault is to be found with the complaint in question. It is meritorious as a clear statement of plaintiff’s case without the incumbrance of unnecessary detail, and, as to substance, meets every requirement of early case or later statute.

There is no dispute but that the plaintiff hired to defendants two teams, each consisting of a wagon and two horses, to be used bv the defendants in hauling heavy castings between the Lynn Iron Works and defendants’ place of business in the city of Birmingham. Defendants were to load and unload the wagons. Plaintiff furnished drivers for his teams. Defendants were to pay for tlie teams by the hour. At the same time defendants had teams of their own engaged in the same business. All the teams were driven along the customary route between the points indicated. At a point where the paving had been torn up one of defendants’ wagons got into a hole or ditch from which the teams ^yas unable to move it. Thereupon the driver of one of plaintiff’s teams, who had just had a similar experience at the same place, unhitched his team and took it back to help defendants’ team; and because his team would not work in the lead, hitched them to defendants’ wagon with defendants’ team in the lead. The driver did this of his own initiative, but it is clear that one of the defendants approved and acquiesced. In the effort to ■extricate the wagon from the hole or ditch the casting-fell from the wagon upon plaintiff’s horse, killing it. There was dispute as to whether the accident resulted from the negligent manner in which, according to plaintiff’s contention, the casting had been placed upon the wagon, and whether negligence of the driver in the management of his team did not cause or proximately contribute to the result. These matters of dispute became thereby questions for the decision of the jury, and appellee contends that upon the facts and tendencies detailed it was a question for the jury whether there had been a conversion of plaintiff’s team as alleged in count A of the complaint. And so the court below ruled. But we are of the contrary opinion. Where the owner of a horse lets him to hire for a certain purpose, any material departure from the contemplated use amounts to a conversion for which the bailee will be liable in trover if the horse is injured or destroyed while being so used. —2 Cyc. 312. But this rule proceeds upon the principle that the bailee becomes a wrongdoer by putting the horse to a use not within the contemplation of the parties when they entered into the contract of hiring. They must be held to have had in mind such contingencies as may and do naturally occur in the course of the use contracted for unless specifically excluded. The manner of rightful use to which defendants might put the horse is to be ascertained from the agreement for hire as rationally interpreted. Mr. Schouler, speaking on this subject remarks that “the leaven of common sense, which keeps our law in constant ferment, is here at work, recalling the injustice of visiting blameworthy and blameless deviation with the same penalties of absolute or insurance accountability. One hires a horse for a given journey, but unexpectedly encounters a friend, and turns off to visit him, using, all the while, a prudent care of the animal; or he finds obstructions in the road, and changes the point of destination to another which must have equally suited his bailor, or he misses his way. Such instances are matters of every-day occurrence.” And he suggests that a serviceable defense in such cases lies in a just and reasonable interpretation of the undertaking of bailment itself, which, “if par-sued with ordinary prudence, under all the circumstances, ought not to be too literally construed against a bailee who may have found himself in some unforeseen emergency, and, while far from his bailor, obliged to act upon his own judgment. For one who hires may be presumed to have much latitude as to time and methods of enjoyment; and local usage and the good sense of the contract should intrepret favorably, where restrictive use was not clearly specified. If the hiring be genera], any prudent use of the thing is permissible; and even if it be particular, terms not fairly meant for exclusion need not warp the hirer’s discretion.”— Schouler’s Bailments. §§ 140, 141. See, also. Spooner v. Manchester, 133 Mass. 270, 43 Am. Rep. 514. Here the facts were shown without contradiction or contrary inference — the facts as to which there was dispute not being of consequence in this immediate connection — ■ and the issue thereupon became one of law for the decision of the court. Assuming the defendants co-operated in the use of the animal charged as a conversion to the extent which would make that use chargeable to them, we are of opinion that their act in temporarily using the horse as one of a team of four instead of as a team of two to get their wagon over a hard place in the road, under the circumstances shown, did not amount to a tortious breach of the contract of hiring, and that the defendants were entitled to the general charge on the count for trover.

In oral and special 'written charges the court told the jury that if the horse was in the possession of the defendants at the time of its injury, the burden rested upon them to show that it had not been injured by their negligence. The court was authorized to assume as facts’ the bailment, and that the horse was injured while in the possession of the bailees, for as to that there was no dispute. And on these facts, nothing else appearing, the statement of the burden of proof would have been free from fault. — Higman v. Camody, 112 Ala. 267, 20 South. 480, 57 Am. St. Rep. 33. But there was a circumstance of material qualification which the charge seems to have overlooked. In proving the bailment the plaintiff proved also as a part of the contract an agreement that he was to furnish the driver; and it clearly appeared that he did so. In that situation the presumption must in reason rather he that any injury which came to the animal'resulted from the negligence. of the driver, if the character of the injury indicated neuliuence on the part of any one; for, although the bailee had possession in a certain large and loose sense, that possession was not exclusive. The rule that the burden of proof rests upon a bailee is generally stated of cases in which the bailee has exclusive possession. — Collins v. Bennett, 46 N. Y. 490. And it rests upon the consideration that in such cases the facts attending loss or injury must be peculiarly within the bailee's own knowledge. On no other principle can a departure from the rule which requires the plaintiff to make out his case be sustained, and, unless the bailor goes with his property or reserves a certain oversight, as where the owner of a horse rides with the hirer, or the guest at an inn puts his watch under his pillow, or a drover goes on the train with his cattle — instances mentioned in the books- — the bailee must have peculiar knowledge. Here the bailor sent his own -driver. The safety of a team depends most immediately upon the -driver as we know from common experience. The case was the same as if the owner had driven his team, and in such case it seems that common sense and sound law would place the burden of proof upon the plaintiff as it is ordinarily placed where negligence is charged. — Hughes v. Boyer, 9 Watts (Pa.) 556. There was error in the charges.

Assignments based upon rulings on the admissibility of evidence need not be treated in detail. It will suffice for a- proper disposition of the case here to say that those questions which sought to have witnesses state as mere conclusions — such was the effect of a number of them — whether the casting had been so placed upon the dray as that it would probably fall under circumstances which did intervene and which ought to have been foreseen in the exercise of due care, and whether the driver, to whose negligence the jury were free to refer the accident, was acting under the control of the defendants, were of course properly disallowed. Those questions tlie jury were brought to decide upon consideration of the facts in detail.

One ruling may be mentioned. Appellants cite Telephone Co. v. Cleveland, 44 Kan. 167, 24 Pac. 49, to prove that a witness, who had been a bystander while the driver was endeavoring to get his wagon out of the founderous place in the street, should have been allowed to testify to a remark made by him to the driver. If the witness had called attention to a fact of the situation which ought to have influenced a careful driver in the management of his team, that would have been allowed to go to the jury under the special plea as evidence of the driver’s knowledge of the danger of the situation; but it may well have been that the remark was irrelevant to any issue involved. The question itself afforded no intimation as to the relevancy of the expected answer. The trial court could not be put in error until the party showed that the expected answer would be relevant. The Kansas case contains nothing to the contrary.

For the errors indicated, we are of opinion that the judgment should be reversed and the cause remanded for another trial.

Reversed and remanded.

Dowdell, C. J., and Anderson and Evans, JJ., concur.