American District Telegraph Co. v. Walker

Alvey, C. J.,

delivered the opinion of the Court.

This action was brought by the appellee against the appellant to recover for injury to a pair of horses, and to a Surrey wagon, a vehicle to which the horses were attached at the time of the accident. The question is, whether the defendant is responsible for the consequences of the accident.

The defendant is a corporation, and it appears that it holds itself out for the undertaking of the performance of various services; such as the carriage of parcels, messages, and other errands and commissions, upon call at district stations in the city. The corporate name of the defendant would not appear to indicate very clearly the nature of the duties that it assumes to perform.

It appears that the plaintiff was the owner of a pair of valuable horses which he kept at Little’s livery stable on Howard street; and having the horses hitched to a Surrey wagon, hired of the proprietor of the livery stable, for a drive in the country, upon his return, he and his companions stopped at a restaurant on the corner of Calvert and German streets; and desiring to have the horses and vehicle taken to the livery stable', he went to the nearest district office of the defendant and asked for a boy competent to drive a pair of horses to Little’s stable on Howard street, and paid the customary charge for a messenger service. The manager of the office *460 responded, and sent a boy to take the team, but, on seeing the horses and being asked if he could drive, the boy said he could not drive a double team, and thereupon he was sent back to the office by the plaintiff, and the latter then determined to wait for the driver from the stable; but before such driver arrived, another boy from the defendant’s office called to take the team, who said, in answer to an inquiry, that he had driven a double team before; and the plaintiff gave the horses and vehicle in charge of the boy, and gave him direction as to the course he should take to get to the stable, in order best to avoid crowded streets. The boy started off with the team, but on the way to the stable, the horses ran off, threw out the boy, broke up the vehicle, and one of the horses was so seriously injured that he had to be shot, and the other horse was rendered unsafe to drive. There was evidence given tending to show that the running away of the horses was caused by the negligent or unskilful driving of the boy. It would appear that the furnishing of boys to drive teams for customers was part of the ordinary business of the defendant; for Little, the keeper of the livery stable, testified that the defendant had .a call box in his stable, and that he frequently called messenger boys of the defendant to drive teams, and they were supplied, and that he settled for such service monthly.

There was evidence offered by the defendant for the purpose of proving previous knowledge on the part of the plaintiff of a limitation as to the extent of damages for which the defendant would contract to be answerable, for any injury that might be sustained in the course of its service. Such condition was printed at. the foot of its blank delivery tickets. But it was not shown that there was any contract in this case, by ticket or otherwise, containing any such limitation of liability; and the evidence offered was therefore rejected, and Ave think properly so.

*461 Upon the whole evidence, the Court instructed the jury, upon request of the plaintiff, that if they found from the evidence that the defendant undertook, for a reward, to deliver the team of horses and vehicle, as described in the evidence, to a person designated by the plaintiff, and in the course of this undertaking entrusted the driving of the team to one who, by his negligence, permitted the horses to run away, whereby the plaintiff suffered damage, then the plaintiff was entitled to recover, and the jury should allow such damages as they might find from the evidence the plaintiff suffered by reason of the defendant’s default in the premises.

The defendant offered six prayers, all of which were rejected by the Court. He also moved the Court to exclude from the jury all the evidence on the part of the plaintiff which related to the injury of the Surrey wagon, and the expense incurred in repairing the same. And to the refusal of its prayers, and the motion to exclude the evidence, as well as to the instruction given by the Court to the jury, the defendant excepted.

This is a case of bailment for hire, but the defendant did not, by its undertaking, incur the liability of a common carrier. This species of bailment is included in what Lord Holt in the leading case of Coggs vs. Bernard, 2 Lord Raym., 917, classifies as the fifth sort, viz: “a delivery to carry or otherwise manage for a reward to be paid to the bailee;” and as to which, said Lord Holt, the cases are of two sorts; “either a delivery to one that exercises a public employment, or a delivery to a private person. First, if it be to a person of the first sort, and he is to have a reward, he is bound to answer for the goods at all events.” But as to the second sort, he says, “they are bailiffs, factors, and such like;” in which case the bailee is only bouxxd to take reasonable care; and “the trxxe reasoxx of the case is,” says the learned Judge, “it would be urxreasonable to charge him *462 with, a trust further than the nature of the thing puts it in his power to perforin it.” And so Judge Story, in his work on Bailments, sec. 457, founding his text principally upon Lord Holt’s classification, states the same distinction. He says, “Every such private person is bound to ordinary diligence, and to a reasonable exercise of skill; and of course he is not responsible for any losses-, not occasioned by the ordinary negligence of himself or his servants. He will not, therefore, be liable for any loss by thieves, or for any taking from him or them by force, or where the owner accompanies the goods to take care of them, and is himself guilty of negligence. This is the general rule; and it of course applies to all cases where he has not assumed the character of a common carrier, unless, indeed, he has expressly, by the terms of his contract, taken upon himself any such risk.” The application of the principle of this species of bailment, and the extent of the liability of the bailee, are well explained and illustrated by the cases of Newton vs. Pope, 1 Cow., 109 ; Brind vs. Dale, 8 Carr. & P., 207, and Searle vs. Laverick, L. R., 9 Q. B., 122; and those cases show that if negligence or want of skill in the bailee or his servant be the ground of action, the onus of proof is on the plaintilf.

The instruction granted by the Court is based exclusively upon the alleged negligence of the boy in driving the horses. There was evidence tending to prove such negligence, and we perceive no error in the instruction. The boy was furnished from the defendant’s office to take charge of and to drive the team of horses to the livery stable, and having assumed the duty for a reward, the defendant was bound to furnish a driver both competent and careful.

Nor do we perceive that there was any error committed by the Court in refusing to exclude from the consideration of the jury the evidence in regard to the *463 damage done to the Surrey wagon, and the expense of its repair. It is true the plaintiff was not the general owner of the wagon, but, having hired the vehicle, he was bailee, and as such he had a special property in it, which entitled him to recover for any injury to it, as against a party without title. He was answerable to the general owner, and was therefore entitled to recover of the defendant to the full extent of the injury to the vehicle, caused by the negligent act of the defendant’s servant. Harker vs. Dement, 9 Gill, 7, 13 .

(Decided 19th June, 1890.)

With respect to the prayers offered by the defendant, we think there was no error in rejecting them. The instruction actually given by the Court was as favorable to the defendant as any that could well have been given, upon the facts of the case, and which instruction rendered it wholly unnecessary to grant the second and third prayers of the defendant; as by the instruction given the defendant was only held to that degree of care which an ordinary bailee for hire is liable. And as to the other prayers, clearly, in view of what we have said in regard to the nature of the liability of the defendant, there was no error in rejecting them. The judgment must therefore be affirmed.

Judgment affirmed.