Bain v. Culbert

*313 JIcOLELLAN, J. The appellee was accorded judgment against the appellant for damages for the loss of one hale of cotton belonging to appellee. The ease was submitted to the jury upon the issues tendered by general traverse of the averments of counts 3 and 4 of the complaint only. Count 5 was excluded from the jury’s consideration by general affirmative instruction given at appellant’s instance. Counts 3 and 4 are reproduced in the report of the appeal. The court overruled appellant’s demurrer to those ■counts. The only ground of demurrer, which appellant insists, in brief on this appeal, was well taken to count 3, took the objection that the count, avowing the pleader’s conclusion, was deficient in spefcification or description of the act or omission of defendant resulting in or causing the loss to plaintiff of the bale of cotton. Consideration here is confined to this, the only ground of demurrer sought to he supported in the brief for appellant. Count 3 undertook to declare upon the breach of duty arising from a bailment.' This count is in case for negligence, a right of election of remedy he possessed. Davis v. Hurt, 114 Ala. 146, 150, 21 South. 468. Since, in the absence of special contract, a bailee who has had possession of the subject of a bailment may be justly assumed to have been so related to the chattel bailed as to be peculiarly advised of the circumstances attending its loss, and since negligence is prima facie imputed to a bailor who, on demand, fails to deliver the subject of the bailment or to account for the failure to make delivery, general averment of negligent breach of the bailor’s duty in the premises will suffice in a count in ease for the damage proximatoly resulting from the loss of the property'bailed. Hackney v. Perry, 152 Ala. 626, 632, 634, 44 South. 1029; Davis v. Hurt, supra. The trial court did not err in the view, evidently entertained, that the ground of demurrer indicated was not well taken. With respect to the fourth count, there is no sufficient insistence in brief upon any theory evinced by grounds of the demurrer to count 4. It is simply remarked in brief that this count attempted to state a cause of action under the act approved August 14, 1907 (Gen. Acts 1907, p. 650), providing regulations, with' penalties, for the government of public ginners. Notwithstanding there was unnecessarily included in count 4 allegations referable to that act — thereby constituting such averments material to the statement of plaintiff’s case and requiring their support, at least prima facie, in the proof — this count was, in nature and character, the same as count 3. Late in the afternoon of October 1st the plaintiff took his seed cotton to defendant’s public gin, for the purpose of having it gin-¡ ned and bailed. The seed cotton was delivered i to the defendant’s ginnery. Darkness interrupted the process of baling, after the separa-'. tion of seed from the lint was completed. The ■ baling was completed the next or the second ■ morning thereafter, and the bale was rolled out on the gin premises. The bale disappeared. No other explanation of its loss was-shown than that it had disappeared. The undisputed evidence went to show that, though the public ginnery was operated for a reward, no charge was ever exacted for storing or keeping cotton, baled-by the ginnery, on the premises. The plaintiff testified, in substance, that when the process was interrupted by darkness the defendant told him he would complete the baling the next or the second succeeding morning and that, upon defendant’s proposal, he (the plaintiff) left the then uncompleted bale in the custody and care of defendant, who told plaintiff “that he would see after it as long as he [I] might want to leave it there.” The defendant’s testimony disputed that phase of plaintiff’s evidence. According to plaintiff’s stated version of the circumstances attending his leaving the bale on the ginyard — upon the defendant’s proposal, made and accepted while the service for which he was to be compensated had not been completed — it could not be soundly affirmed, as a matter of law, that the defendant’s relation was that of a gratuitous bailee; of which character of bailee only slight care or diligence, not ordinary-care or diligence, is required for the preservation and restoration of the subject of the bailment. Prince v. Ala. State Fair, 106 Ala. 340, 344, 17 South. 449, 28 L. R. A. 716; Thomas v. Hackney, 192 Ala. 27, 29, 68 South. 296; Van Zile on Bailments (2d Ed.) §§ 32-35. Such a bailee is only liable for gross negligence or bad faith in the premises. Author, supra. Indeed, if the plaintiff’s stated theory was accredited, the bailment was not gratuitous but lucrative. Prince’s Case (supra), where it was aptly declared that, “if the bailment was made at the instance or on the invitation of the defendant, because of benefits, direct or contingent, it was expected would accrue,” the bailment was not gratuitous. It is at least reasonably conceivable that the accession by plaintiff to the defendant’s proposal (if made pending the process of ginning and bailing this cotton for a reward) that he would later complete the process and “see after” the cotton “as long as” plaintiff “might want to leave it” on the ginyard, conferred a benefit on the defendant. Prince’s Case, supra. At the instance of the plaintiff the court gave this special instruction to the jury: *314 “A gratuitous bailee of property is charged with the duty of using ordinary diligence in the care of said property.” This instruction misstated the degree of care or diligence exacted of such bailees in this jurisdiction. It was erroneously given; the measure of care or diligence exacted being slight, not ordinary. Prince’s Case, supra; Thomas v. Hackney, supra. Whether a bailment of a lucrative or of a gratuitous character was created in the circumstances disclosed by the conflicting evidence was a question for the jury to determine. It is manifest that the defendant was not due the general affirmative charge on any material issue in the case. Since it is to be anticipated that before another trial count 4 will be reformed in the aspect it appears to aver violation of the cited act of 1907, it is not necessary to consider that only partial phase of the count. For the error committed in giving the quoted special instruction at plaintiff’s request, the judgment is reversed, and the cause is remanded. Reversed and remanded. ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.