
    Cartlidge v. Sloan.
    
      Action for f)a mayes for Conversion and Injury to Animal by Bailee.
    
    
      1. Appeal; how dismissed by appellant. — After appeal taken to the Supreme Court and supersedeas bond given, the appellant cannot dismiss the appeal except by order of the appellate court.
    2. Demurrers; when judgment on not sufficient. — When a complaint contains several counts and each count is demurred to, a judgment entry with respect thereto in these words, “The defendant’s demurrers to the complaint is overruled by the court,” is not sufficient and will not support an assignment of error thereon.
    3. Negligence; what will not support action for. — Where one hires an animal of another for a specified use and puts it to other and different use, such breach of the terms of the bailment will not warrant a recovery for; negligence. To support an action for negligence in such case the evidence must disclose an inadvertent failure on the part of the hirer to use ordinary care under the circumstances in observing or performing a non-contractual duty, implied by law, which failure is the proximate cause of injury to a person to whom the duty is due.
    4. When count bad for repugnancy. — When a count in a complaint brought to recover damages for negligent injury to an animal, alleges that the defendant recklessly, carelessly and wantonly so used the animal that she died, it is bad for repugnancy and really avers, in the alternative, either negligence or wantonness, since an act cannot be done through inadvertence and at the same time be done wantonly;, and construing the count against the pleader, it must be held to charge negligence only.
    5. When count states no cause of action. — A count which charges negligence against a defendant but alleges no duty owing the plaintiff by the defendant, nor states any facts from which the law will imply the duty, states no cause of action.
    G. Conversion; what is by bailee. — Where a person hires an animal for a specified kind of work, and in violation of the terms of the bailment the bailee uses it for other and different labor, such unauthorized use is a conversion of the animal for which the bailor may maintain trover for its value. And in such case the liability for injury or loss is not dependent upon the want of care on the part of the defendant in the use of the animal, but it is absolute. Nor is the injury or loss an element in the conversion; it can only go to the measure of damages.
    7. Plaintiff must prove conversion. — Where it is charged that a bailee was guilty of conversion by misuse of the property bailed to him and injury thereto, the mere fact that it was uninjured when delivered to the defendant and was injured when returned by him, does not make out a prima facie case. The plaintiff must prove a conversion by proving to the reasonable satisfaction of the jury that the defendant made use of the property in a way in violation of the terms of the bailment.
    Appeal from Clierokee Circuit Court.
    Tried before Hon. S. H. Sprott.
    Suit by J. B. Sloan against N. M. Cartlidge to recover damages for injury to a mare, tlie property of the plaintiff. The complaint contained five counts, the nature of which and the facts of'the case are set out in the opinion. The following are the charges referred to in the opinion. Given to plaintiff: 1. “If the jury believe from the evideuce that Cartlidge got the mare to do a particular kind of work, and put her to a different kind of work, and she was injured while doing such work, this was a conversion and would make the defendant liable.” 2. “If the jury believe from the evidence that Cartlidge only plowed Sloan’s patch for his benefit to get the mare sooner to use at his own work, this of itself was not sufficient to constitute a hiring.” 3. “If the defendant borrowed or hired -the mare to do light work, and put her to heavy work, and while she was doing such heavy work she received an injury from which she died, then the defendant is liable although the injury to the mare occurred without any fault on the part of the defendant.” -1. “The plaintiff makes out a prima facie case by proving to a reasonable certainty that the mare was not injured when Cartlidge got her, and that she was injured when he returned her.” Refused to the defendant: 1. “That the relation of the plaintiff and the defendant at the time this horse; was injured was that of hiring.” 2. “The court charges the jury that if they believe from the evidence the mare died from improper treatment by Bloan or by his doctoring after she was injured, the jury must find for the defendant.” 3. “The court charges the jury that if they believe from the evidence that the horse died from erysipelas or blood poison and not from the injury received, the defendant is not responsible for the value of the mare.” 4. “That the plaintiff is not entitled to recover on the last count in his complaint,”
    IT. W. Cardón, for appellant.
    Burnett & Oului, contra,
    cited, Higman v. Gamocly, 112 Ala. 509; Wheelock v. Wheelwright, 5 Mass. 104; Bridges v. T. G. cG I. B. B. Go., 109 Ála. 287; Haas v. Taylor, 80 Ala. 459; Bennett v. O’Brien, 37 111. 250; L. cG Á. B. B. Go. v. Barker, 96 Ala. 435.
   TYSON, J.

— It appears that the endorsement made by appellant upon the supersedeas bond, was made by him upon the advice of counsel that such an endorsement would exonerate his sureties upon the bond from all linbility; and upon being informed that it would not have this effect, lie withdrew or revoked the order to the clerk contained in the endorsement made by him upon the bond and directed the clerk to make a transcipt of the proceedings in the cause and forward it to this court. I le had the right to Avithdraw his offer to dismiss his appeal at any time before it was acted upon by this court. A dismissal could not have been effectuated except by an order 'made here. True, he had the right to direct the clerk not to make a transcript of the proceedings, and had he not withdrawn til's instruction to this effect the appellee could have had a. judgment of affirmance not only against the appellant but his sureties also, upon production by him of the proper certificate of the clerk that an appeal had been taken.- — 1 Brick. Dig. 103. The motion to dismiss the appeal must be denied.

It appears that each count of the complaint Avas demurred to. However, the only recital in the judgment entry with respect thereto is in these words: “The defendant's demurrers to the complaint is overruled by the court.” This is not sufficient as a judgment of the court upon the demurrers and Avill not support an assignment of error. We must, therefore, decline to consider them. — McDonald v. Ala. Midland R’y Co., 26 So. Rep. 165, and authorities there cited.

The gravamen of the first, second and third counts of the complaint is conversion of the mare, by the using of her in a Avay, in violation of the terms of the agreement under which the defendant acquired possession of her. The fourth count in averring the bailment simply avers that “plaintiff let defendant have the use etc.” The Avord let as here used, taking into consideration the entire context of the count, upon the familiar principle, . that pleadings must be construed most strongly against the pleader, must be construed to mean “to lease; to grant the use and possession of a thing for compensation.” — Bomder’s LaAV Diet. p. 185. So then this count is predicated upon a hiring of the mare by the plaintiff to the defendant for a reward, the negligent use by the defendant of her in permitting her to be worked by a boy Avhen injured and the negligent use of her after the injury from which she died. The fifth count, alleges that the “defendant recklessly, carelessly and wantonly so used” the mare that she died. This count is “bad for repugnancy and really avers, in the alternative, either negligence or wantonness, since an act cannot be done through inadvertence and at the same time be done wantonly; and construing the count against the pleader, it must be held to charge negligence only.”- — L. & N. R. R. Co. v. Orr, 26 So. Rep. 35, s. c. 121 Ala. 489, and authorities there cited. Thus construing it, it does not state a cause of action for the obvious reason, that it alleges no duty owing the plaintiff by the defendant nor states any facts from which the law will imply the duty. — Ensley R. Co. v. Chewning, 93 Ala. 24; 14 Ency. Pl. & Pr. 331. If it were possible, hoAvever, under any phase of the case to construe this count as charging wantonness, the plaintiff Avould derive no benefit arising out of such a construction, for the reason, that such an allegation is Avliolly unsupported by the evidence in the case.

We Avill consider in the iirverse order of the pleadings, that phase of the case relying upon the negligence of the defendant resulting in injury to the mare for a recoArery. A bailment was created Avhen there Avas a delivery of the mare by the plaintiff to the defendant for a particular use or purpose.- — Magee v. Toland, 8 Port. 36; 3 Am. & Eng. Ency. Law (2nd ed.) 733. The testimony of all the AAdtnesses agree that at the time of the delivery of the mare, it Avas understood that she Avas to be used by the defendant for farm work. The contention of the plaintiff, and there is testimony tending to support it, is that no consideration was to be paid by the defendant for her use and that she was only to perform light work, to-Avit: “to open corn beds.” The contention of the defendant, and there is testimony tending to support his side of the controA’'ersy, is that he Avas to and did pay the plaintiff a consideration for the use of the mare and that she Avas to perform farm work generally, AArithout reference to avIiether it was light or heavy.

The evidence establishes, without dispute, that at the time the animal Avas injured, she Avas being Avorked by the defendant Avith tAvo of his mules to a harroAV in the preparation of land, which the year previous had beeu cultivated in corn. That the position of the mare was on tlie right side of one of the mules, immediately in front of the harrow, which mule was being ridden by one of his sons, and the other mule was working single in front. The mare and mules thus arranged were what is commonly known as a “spike team.” In working the team in this manner the front mule walked upon the old corn bed, while the mare and the saddle mule walked in the water furrow upon each side of the bed or row.

The defendant, at the time of the injury to the mare, Avas riding upon the harroAV and Avas superintending the work. It Avas Avliile this work Avas being done, that the mare Avas injured by means of the end of a corn stalk, which Avas standing, stabbing her in the breast Avliich inflicted the injury.

It appears Avithout dispute that the team aatus being driven in a careful manner at the time the injury Avas inflicted and the Avork Avas not at all dangerous or hazardous. When the mare was Avounded she stopped and thereupon the defendant removed the corn stalk Avliich inflicted the injur yand immediately unhitched her from the harroAV and. gave her the proper attention.' Within a feAV hours after the occurrence of her injury, he returned her to the plaintiff and assisted him in caring for her Avound.

It is very clear from this statement of the. facts, that the aA”erments of the fourth count of the complaint are not sustained. Indeed, it can be said as a matter of hrw, upon these facts that the defendant Avas not guilty of any negligence AAdiatever-. He may have been guilty of a breach of the terms of the bailment, depending upon the finding by the jury as to the truth of the plaintiff’s contention upon that point. Should the jury find that the defendant agreed when he received the mare to use her for light Avork and violated his agreement by using her to do hoaA’y work, this would not Avarrant a recovery for negligence. The evidence must disclose his “inadvertent failure to use ordinary care under the circumstances in observing or performing a non-contractual duty, implied by law, Avliich failure is the proximate cause of injury to a person to whom the duty is due.” — 16 Am. & Eng. Ency. Law, 389. In other words, the evidence must disclose the failure of the plaintiff to use ordinary care in the use of the mare while working her to the harrow, Avhicli failure was the proximate caus'e of her injury.

The other phase of the case, to which we will now advert, involves the right of the plaintiff to recover, based upon an alleged use of the mare in violation of the terms of the bailment-. The general rule is that if a bailee having authority to use a chattel in a particular way uses it in a different way or to a greater extent than authorized, such unauthorized use is a conversion of the chattel for which the bailor maj maintain a trover for its value. An illustration, apropos to this case is found in the case of Fail & Miles v. McArthur, 31 Ala. 26, where it is said: “If a slave should he hired to one for a particular purpose, to be employed at a particular labor, there would be a special hiring for a particular irarpose. He who hires a slave for a particular service has no right to employ the slave in another and different service; and if he does so, it may be treated as a conversion by the owner. This principle is not only settled in this State, but was'established at common law, and the books abound with adjudications recognizing it. Where one hired a horse, to ride from Boston miles to Brooklin and upon reaching Brooklin, rode miles farther to Watertown, he was held liable for a conversion. So, if a horse is hired as a saddle horse, the hirer has no right to use him in a cart or to carry loads, or as a beast of burden; and one who borrows jewels, to wear to a ball, will be responsible if he wear them to the theatre or to a gaming house.” See also Fox v. Young, 22 Mo. App. 386; Lane v. Cameron, 38 Wis. 603; De Talleman v. Fuller, 12 Am. Dec. 616 and note on pp. 619-620; Bolling v. Kirby, 90 Ala. 215, s. c. 24 Am. St. Rep. 789, notes 795 to 819. In such case, the liability for injury or loss is not dependent upon the want of care on the part of the defendant in the use of the mare, but it is absolute. — Hooks v. Smith, 18 Ala. 338; Duncan v. Railroad Co., 2 Rich. (S. C.) 613. Nor will the subsequent return of the property after its misuse and its acceptance by the bailor bar an action for the conversion, but its redelivery will only go in mitigation of damages. — St. John v. O'Connell, 7 Port. 466. If tlie chattel is so injured as tliat it is worthless AAdien returned, the damages of course would not be reduced. The burden of proof where a conversion for a misuse is relied upon for a recoA'ery, is upon the plaintiff, just as it is in any other action for a conversion.

The mere proof by the plaintiff that the mare Avas uninjured AAdien delivered to the defendant and was injured AAdien returned by him did not make out a prima facie case. It Avas incumbent upon him to prove to the reasonable satisfaction of the jury that the defendant made use of her in a Avay in violation of the terms of the bailment. Tie must prove a conversion.

It folloAvs from what AA'e have said that charges numbered 1, 3 and 5 requested by the plaintiff Avere properly given and that the ghdng of charge number 4 at the re quest of plaintiff and the refusal to give charge number 4 at the request of the defendant Avas error.

Charge number 2 given at the instance of the plaintiff AA'as misleading and abstract, and should have been refused. Bui; the giving of it is not a reversible error.

Charge number 1 requested by defendant Avas’properly refused. •

Charge 2 is predicated upon the proposition that if the plaintiff by improper treatment of the avouiuI AAdiich the mare received caused her death, then the plaintiff ought not to recoA'er. The plaintiff's right of action for a con-A'ersion Avas complete AAdien the conversion took place and this Avitliout reference to the mare’s physical condition after the conversion. If she Avas returned to him after injury, the then condition of the mare Aims an element to be considered by the jury in fixing the amount of damages the defendant should pay. If by the injury she AA'as rendered Avorthless, then, of course, the market A'alue of the mare Avas the measure of damages. If the injury caused her death, this Avould afford eAddence of her Avorthless condition when returned; but whether the injury caused her death, or AA’hetlier her death Avas caused by some intervening superseding cause, is only material in determining the amount of damages the plaintiff should recoA’er. Should a superseding inter-A'ening cause be sIioaxui, causing her death, this would not defeat the plaintiff’s right to recover, at least, nominal damages. For these reasons this charge should have been refused. — Collins v. Bennet, 46 N. Y. 490.

Charge 3 requested by defendant was rightly refused. The erysipelas or blood poisoning may have been the result of the injury or a mere development of the injury— in which case the defendant would be liable, if guilty of a conversion. — Armstrong v. Montgomery St. R’y Co., in MS.

For the errors pointed out the judgment of the circuit court must be reversed and the cause remanded. Reversed and remanded.  