Meridian Fair & Exposition Ass'n v. North Birmingham Street Railway Co.

1. Bailment. Action for non-return. Destruction. Negligence. Burden of-proof. The law does not presume negligence. When a bailee in an action for non-return of an article borrowed shows that it was destroyed by fire, under circumstances fully disclosed, and not suggestive of any want of proper care, it devolves on the bailor to turn the scale by some evidence inculpatory of the defendant. 2. Same. Property destroyed by fire. Guaranty. Diability. An asronaut contracted with the defendant, a fair association, to give balloon ascensions, and applied to plaintiff to borrow a balloon. Plaintiff linew him to be an experienced aeronaut, but, considering him unreliable financially, refused the loan, whereupon defendant guaranteed the return of the balloon, and plaintiff delivered it, in good condition, to the aeronaut. While in use in filling the engagement, it was destroyed by fire, originating in some inexplicable way. There was no evidence of negligence. Held, there was no guaranty as to care or skill in the use of the balloon, or as against accident, but only that it would be returned after use, and plaintiff could not recover.

From the circuit court of Lauderdale county. Hon. S. H. Terral,-Judge. Appellant, the Meridian Fair & Exposition Association, at its exhibition in 1890, had contracted with one Fisk to make a number of balloon ascensions for the entertainment of its visitors. In order to have what is called a race, it was necessary to have two balloons, which Fisk was to furnish. He applied to appellee, the North Birmingham Street Railway Company, for whom he had made some ascensions, to borrow a balloon to be used for the purpose stated. He showed the manager of the railway company'the contract between the fair association and himself, and explained to him that the proposed balloon ascension had been advertised, but that, unless he could borrow a balloon, the ascension would not take place. The record does not show that this interview was known to the fair association at the time. Fisk was regarded as financially irresponsible by the manager of the railway company, and he refused to lend him the balloon without security for its return. Thereupon, at the suggestion of Fisk, the following telegram was sent to appellant: “ Birmingham, Ala., October 9,1890. “ George M. Hodges, Secretary, Meridian : I will let I. N. Fisk have a balloon to use at Meridian on condition that you will be responsible for its being shipped back to me. Answer if you will be responsible. Randolph Peyton, General Manager The following telegram was received in reply : “ Meridian, Miss., October 9,1890. “We will be responsible. G-. M. Hodges, Secretary There was no further communication, and, thereupon, the general manager of the railway company, as an accommodation to Fisk, shipped the balloon, in good condition, to him at Meridian, and he proceeded with the ascension on the grounds of the fair association. When the balloon had ascended some distance above the ground, it took fire in some unexplained way, and was destroyed. Afterwards, the manager of the railway company applied to appellant for the return of the balloon, and was informed that it could not be returned, because it bad been destroyed by fire. No explanation was offered as to the cause of the' fire. Thereupon, this suit was brought by appellee to recover of the fair association the value of the balloon. A jury trial was waived, and the case was tried by the court. ■ On the trial, the above 'facts, substantially, wez’e shown. Fisk was not examined as a witness. There was no testimony showing the cause of the fire. Witnesses who saw it, could not explain its origin. From a judgment in favor of plaintiff, this appeal is taken. The opinion contains a- further statement of the case. Appellant had no contract with plaintiff for the use of the balloon. It had contracted with Fisk, and appellee loaned the balloozi as an accommodation to him. Appellant’s obligation was simply to return it after it had been used. It is not even shown that thez’e was any negligence on the part of Fisk, and this was necessary to establish liability as against defendant. Schouler on Bailments, §23: Stoz’y on Bailmezits, § 410. • But the burden of pi’oof was on plaintiff to show negligence of the fair association. Story on Bailments, §§278, 410; Schouler on Bailmezits, §23, and authorities there cited. 1. Appellee, by its telegram, agreed absolutely for the return of the balloon. The failure to return it fixed liability. Where a party, by contract, creates a charge upon himself, he is bound to make it good, if he may, notwithstanding any accidezit, because he might have provided against this. School District v. Dauchy, 68 Am. Dec., 371. Where property is placed in a bailee’s hands izi good condition, and is not returned, the burden of exculpation is upon him, especially if the loss cannot ordinarily occur without negligence. The bailor must make out a prima fade case by showing the delivery of the thing in good condition, and the bailee’s failure to redeliver. The prima fade case being made out, the inference is then deducible that the bailee is to blame. In such case, it rests upon the bailee to exonerate himself by showing that he was not negligent. Schouler on Bailments, § 23 et seq., and authorities cited ; Ford v. Simmons, 13 La. Ann., 397; Collins v. Bennett, 46 N. Y., 490. The defendant should have returned the balloon or given some reason why it could not do so; failing in this, it was liable. Story on Bailments, §§ 278, 411, 529. It gave no excuse, but merely answered that the balloon had been burned, and tbis,-to'o, notwithstanding the facts in' reference to the burning wrere within'its knowledge. It could have easily shown the facts. Its failure to do so was an implied admission that it had not exercised proper care. Boies v. Railroad Co., 37 Conn., 272; Lichtenheim v. Railroad Co., 11 Cush. (Mass.), 70. The judgment should be affirmed.