66 Fla. 549 | Fla. | 1914
John Phillipoff brought an action at law against J. W. Williamson to recover damages alleged to be due the plaintiff from the defendant for the hire of a lighter. The defendant filed pleas- of never was indebted as alleged, never promised as alleged, discharge and satisfaction by payment and a fourth plea to which a demurrer was interposed,. whereupon the defendant filed an amended fourth plea, which is as follows:
“Fourth — That the lighter mentioned in the first count
To this amended fourth plea the plaintiff interposed a demurrer, which, omitting the formal parts, is as follows :
“Now comes the plaintiff in the foregoing cause and says that the fourth amended plea filed by the defendant is insufficient in law and he demurs to the same, and for good and substantial matters of law to be argued to the court sets forth as follows:
1st. Said plea sets forth no defense to the allegations in the declaration.
2nd. The said plea sets forth no contract based upon valuable consideration by which the plaintiff was to keep the lighter in repair. »
3rd. Said plea admits that the personal property, the subject matter of this litigation, was in the exclusive possession of the defendant, and alleges no contract based upon a valuable consideration by which the plaintiff agreed to remain with the lighter and keep it in repair.
4th. Said plea admits that the defendant received the lighter and kept the same in his exclusive possession for a period of one month and fails to allege that prior to the sinking of the same any steps were taken by the defendant to prevent the same from sinking.”
This demurrer was sustained by the trial court, whereupon, by agreement of the. parties, the case was referred for trial and disposition to A. B. McMullen, Esquire, by
Four errors are assigned, but the one chiefly relied upon and the most strenuously insisted upon before us is that the- trial court erred in sustaining the demurrer to the amended fourth plea. There can be no question thaf the bailment in this case was for the mutual benefit of both parties. As we held in Coombs v. Rice, 64 Fla. 202, 59 South. Rep. 958, “Where a bailment is for mutual benefit, the bailee is held to the exercise of ordinary care in relation to the subject-matter thereof, and is responsible only for ordinary negligence. The bailee is not liable if the property bailed is injured by accident, or by some other means wholly without his fault; and, in the absence of some special stipulation, an injury to or loss of the property falls on the bailor.” As is also said in 5 Cyc. 185, which we cited in support of the foregoing principle, the bailee “is not liable if the subject-matter of the bailment has been injured by some internal decay, by accident, or by some other means wholly without his fault, and in the absence of some special stipulation an injury to or loss- of the-property falls on the bailor.” It will be observed that in the cited case it was sought to recover damages for the loss of the boat which had been hired by the defendant from the plaintiff, which loss was alleged to have been occasioned through the negligence of the defendant, while in the instant case it is sought to recover the amount alleged to be due the plaintiff from the defendant upon a contract for the hire of a lighter. See, also, West v. Blackshear, 20 Fla. 457. The following rule is laid down in 3 Amer. & Eng. Ency. Law (2nd ed.) 761, which would seem to be supported by the authorities: “A bailee for hire, where the use of the thing bailed is
Judgment reversed.