Opinion
1 Div. 926.
March 29, 1932. Rehearing Stricken April 19, 1932.
Appeal from Circuit Court, Clarke County; T. J. Bedsole, Judge.
Action for loss of a bale of cotton by C. T. Jordan against the Clarke County Farm Bureau Gin Company. From a judgment for defendant, plaintiff appeals.
Reversed and remanded.
The following charges were refused to plaintiff:
"2. The Court charges the jury that if they believe from the evidence that Mr. Coleman was the agent of Clarke County Farm Bureau Gin Company, and received the bale of cotton in question and after ginning and baling same, retained same at the request of the agent of the Plaintiff for the purpose of shipping same upon the giving of instructions by plaintiff that it was the duty of the defendant to either ship the cotton or return it to the plaintiff if no instructions as to shipping were given."
"4. The Court charges the jury that the failure to maintain a watchman to guard property left in the open and not under lock which was left with the bailee either for hire or accommodation would constitute negligence in the event that the property so left exposed was stolen.
"5. The Court charges the jury where the nature of the bailment is such that duties or services are to be performed by the bailee he must pursue any instructions given, expressly or impliedly, in relation to the subject matter of the bailment, or he will be liable in the event of loss or injury resulting from a non performance.
"6. The Court charges the jury that the redelivery of the property in question should be made at the place expressly or impliedly appointed by the bailor."
The following charges were given for defendant:
"A. I charge you Gentlemen of the jury that no bailee is an insurer of the goods left with him, but on the contrary, the bailee becomes liable for the loss of the goods only in cases in which the bailee is negligent as I have defined negligence to you, and unless you believe from the evidence that there was such negligence on the part of the defendant then your verdict must be for the defendant.
"B. I charge you gentlemen of the jury that if you find from the evidence that the defendant completed the duty with reference to the bale of cotton for which it was paid, and had the bale of cotton ready, to deliver to plaintiff's agent, and that thereupon the plaintiff's agent left the cotton upon receipt of instructions for such shipping from plaintiff, then the defendant would be liable only for gross negligence if the bale of cotton disappeared pending the receipt of such shipping instructions."
Quincey W. Tucker and Woodford Mabry, both of Grove Hill, for appellant.
Defendant was a bailee for hire, and was bound to pursue the instructions given. Charge 1 should have been given. 5 Cyc. 180; Lyon v. Tams, 11 Ark. 189; So. Steam C. C. Co. v. Goldman, 17 Ala. App. 218, 84 So. 478; Hackney v. Perry, 152 Ala. 626, 44 So. 1029. The evidence showed a bailment for hire, and the cotton was never returned to plaintiff in accordance with the bailment. Charge 2 should have been given. 5 Cyc. 185; McGill v. Monette, 37 Ala. 49; Maxwell v. Eason, 1 Stew. (Ala.) 514. Charge 4 was correct and should have been given. So. St. C. C. Co. v. Goldman, supra; 6 Cent. Dig. "Bailment" §§ 37, 38; Huxley v. Hartzell, 44 Mo. 370; Jenkins v. Motlow, 1 Sneed (Tenn.) 248, 60 Am. Dec. 154; So of charge 5. 5 Cyc. 199, 201. The bailor was entitled to have the property delivered at the place appointed by him. Charge 6 should have been given. 5 Cyc. 199; Churchill v. Walling, 205 Ala. 509, 88 So. 582; Benje v. Creagh, 21 Ala. 151. Charge A, given for defendant, was not warranted by the evidence. Negligence is imputed to a bailor who on demand fails to deliver the subject of the bailment or to account for his failure to deliver. Charge B, given for defendant, is in conflict with the law. Bain v. Culbert, 209 Ala. 312, 96 So. 228; Hackney v. Perry, supra.
Adams Gillmore, of Grove Hill, for appellee.
There was no error in refusing charge 1, requested by plaintiff, that the bailment was one for hire. That was one of the primary questions for determination by the jury. A bailment may originate as one for hire, and on its termination be replaced by a gratuitous bailment. 3 R. C. L. 96. Charge 2 was invasive of the province of the jury, was confusing and misleading. The same is true of charge 3. Prince v. Ala. St. Fair, 106 Ala. 340, 17 So. 449, 28 L.R.A. 716; Batesville Gin Co. v. Whitten, 96 Miss. 210, 50 So. 695. Charge 4 was invasive of the province of the jury; it is always for the jury to say whether specific acts or omissions, under the circumstances of the case, constitute negligence. Reaves v. Maybank, 193 Ala. 618, 69 So. 137. Charge 5 is misleading. Charge 6 is not applicable, the bailor never having appointed a place of delivery. Charges A and B, given for defendant, correctly state the law.
According to the undisputed evidence the plaintiff, Jordan, sent by one Charlie Hill a bale of seed cotton to the gin of defendant to be ginned, baled, and the seed returned to him by Hill. Hill was given the money with which to pay defendant for the ginning, bagging, and ties, and was instructed to leave the bale with defendant to be by it shipped to the farm bureau. The defendant received the seed cotton, ginned and packed the lint into a bale, rolled it out of its ginhouse, onto the platform or its yard, demanded and accepted from Hill its regular charges for ginning, bagging, and ties, at which time Hill told defendant's superintendent that plaintiff wanted him to ship the bale of cotton to the farm bureau and to deliver the seed to him. This was a customary service rendered by defendant to its customers for which no additional charge was made. Defendant's superintendent agreed to make the shipment, and then asked Hill: "What pool does he want it shipped in." Hill replied that he did not know, but as he went by plaintiff's to take the seed he would tell plaintiff to let defendant know. Whereupon the superintendent said: "You tell Mr. Jordan to let me know and I will ship the bale of cotton."
The plaintiff requested the court to give the following charge: "The court charges the jury that if they believe the evidence in this case, then and in that event, the bailment in this case was a bailment for hire." This charge presents one of the principal points of contention. If the bailment was for hire, then the burden rested upon the defendant to acquit itself of negligence in the loss of the bale of cotton. If, on the other hand, under the evidence the defendant was not a bailee for hire, a different rule would obtain. The facts being undisputed on this point, the question was one of law for the court, and as to which either the plaintiff or defendant was entitled to the affirmative instruction. Riley v. Fletcher, 185 Ala. 570, 64 So. 85. It is conceded by all parties that when Hill, the agent of plaintiff, delivered the cotton to defendant to be ginned and packed for a consideration to be paid by plaintiff, defendant became a bailee for hire charged with all the obligations relating to the cotton as such bailee. It is also without dispute that Hill was the agent of plaintiff to do a specific thing, to wit, haul the seed cotton to the gin, deliver it to defendant, to instruct defendant to deliver the bale when ginned to the farm bureau, to pay the charges, and then to haul the seed back home and deliver them to plaintiff. Hill completed his agency when he had done this, and had no authority beyond these instructions. Hill therefore had no control over the bale of cotton after it was ginned, and could not under his agency have received it. The bale of cotton was then in the possession of defendant to be by it shipped to the farm bureau. As to what disposition the farm bureau made of the cotton did not concern this defendant; its duty was clear, and the bailment for hire continued until it made delivery of the cotton to the plaintiff or on his order. It is contended by defendant that, when the cotton was ginned, baled, and rolled out on its platform, its liability as a bailee for hire ceased, and that from then on such service as it rendered was a mere gratuity. With this we cannot agree. Where the manner of redelivery is specified the bailee must comply strictly therewith or will be liable in the event of negligent loss. Southern Railway Co. v. Jones Cotton Co., 167 Ala. 575, 52 So. 899; Municipal Imp. Co. v. Uvalde Asphalt Co. (Tex.Civ.App.) 76 S.W. 448; 6 C. J. 1142-96 (b). The delivery must in all cases be made to the person entitled thereto. Riddle v. Blair, 148 Ala. 461, 42 So. 560. In the instant case, the bailment for hire being conceded, it became the duty of defendant to make redelivery to plaintiff in accordance with instructions; that is, by shipping the bale of cotton to the farm bureau. The agency of Hill had ceased. He had no authority to receive the bale of cotton, and defendant's superintendent so recognized this. The court should have given plaintiff's charge 1 as requested.
Refused charge 2 was confusing, and for that reason was properly refused, in that the agent of the defendant is named as Coleman, when the evidence discloses that the superintendent acting for defendant in the transaction was named Whatley.
Plaintiff's refused charge 3 was covered by the court in his oral charge.
Plaintiff's refused charge 4 invades the province of the jury. It is for the jury to say what facts constitute negligence on the part of defendant in dealing with the bale of cotton.
Plaintiff's refused charges 5 and 6 state the law as applied to this case and should have been given. 5 Cyc. 201 (b).
Defendant's given charge A, when taken and considered in connection with the court's oral charge, was free from error.
Defendant's given charge B is in conflict with the foregoing opinion and was error. The undisputed evidence is that defendant did not deliver the bale of cotton to an agent of plaintiff who was authorized to receive it. Hill's agency with respect to the bale of cotton had ended with the giving of the instructions and defendant's agreement.
Other assignments of error are grouped in appellant's brief. Some of the rulings of the court included in the group were free from error.
For the errors pointed out, the judgment is reversed, and the cause is remanded.
Reversed and remanded.