Fox v. Pruden

By the Court. Daly, F. J. Assuming as the testimony would seem to warrant, that this was a bailment for hire, the defendant was bound to ordinary care and diligence, and if the horse was injured whilst in his possession, the obligation was upon him to show how the injury happened; and if unable to do that, to show that he exercised that degree of care of the animal which would overcome any presumption that the injury occurred from the want of ordinary care and diligence on his part (Arent v. Squire, 1 Daly, 347). It is apparent upon the evidence, that the injury must have happened in, or in the vicinity of, the defendant’s stable. If the mare was uninjured when the witness, Peter, left her, it must have occurred in the stable. As the floor of the stable had been newly laid, some of the old nails of the former floor may have been lying about, or a rusty nail attached to the old pieces of lumber which were lying around, outside of the stable, may have penetrated the mare’s foot as she was brought into the stable; or if the straw, which composed her bed, had [190] been brought from the hardware store, the nail which entered her foot may have been in that. The accident may have occurred from any one of these causes, and the existence of any one of them would warrant the jury in finding that there was a want of ordinary care and diligence on the part of defendant. The judge told the jury that if they were satisfied from- the evidence that it was a bailment for hire, that then they must be satisfied, affirmatively, that the defendant did not exercise ordinary care in the charge of the animal, which was charging as strongly in the defendant’s favor as he was entitled to. If the evidence warranted the conclusion that this was a gratuitous loan, then the judge was justified in stating to the jury that if the horse was loaned for a specified time, and at the end of that time a demand was made for it, then it was a conversion. The plaintiff testified that he told the young man when he gave him the mare, that she had to work that night, and that he must bring her back at twelve o’clock; that she was not brought back at the time, and that he went and saw the defendant, and being told that she was down town, that he said to the defendant that she must be home by four o’clock, as she had to go out with the sweeping machine. It then became the duty of the defendant to return her before that time, for at four o’clock the bailment was at an end, and the detaining of her after that time, against the plaintiff’s consent, was a wrongful act. She was not returned at that hour, but on the contrary the defendant used her the whole of the next day. He kept her in fact until the fourth day, and* then returned her disabled and useless. This was clearly a conversion (Bryant v. Wardell, 2 Exchq. R. 479; Put v. Rowsterne, T. Raym. R. 472; Lashmere v. Toplady, 2 Vent. 170; Lucas v. Trumbull, 15 Gray, 310; Porter v. Foster, 7 Shep. 391; Ripley v. Dolbier, 6 Id. 382; Hart v. Skinner, 16 Verm. 138; Spencer v. Pilcher, 8 Leigh. 565; Horsley v. Branch, 1 Hump. 199; Bullas N. P. 46; 1 Danv. Abm. 21). The action was not for a conversion, but for loss and injury arising through the defendant’s negligence; and it was through his negligence and want of diligence in not returning the horse when the bailment was at an end, that the injury arose in the way that it did, for had [191] the animal been returned at the time specified, it would not have happened (Johnson v. Weedman, 4 Scam. 495). Nor was there any error in instructing the jury that the plaintiff’s right of action was not waived by his accepting the animal when it was brought back to him; that the circumstance merely went in mitigation of damages (Murray v. Burling, 10 Johns. 176; St. John v. O'Connell, 7 Port. 466). “ If a man ride my horse,” says Justice Buffer, “ I may have an action against him, for the riding is a conversion, and the redelivery will only go in mitigation of damages ” (Buffer’s Nisi Prius, p. 46). The judge’s comment upon Peter’s testimony was warranted by the evidence. As he was the one that drove the defendant’s wagon, it had some bearing upon the defendant’s and his own statement that the plaintiff loaned the defendant a bay horse, the plaintiff having testified that he never loaned or gave the defendant any other than the gray mare; that the defendant never had two horses from him either at different times or at the same time. The other exceptions taken are disposed of in the observations already made. The judgment should be affirmed. Judgment affirmed.