Dorman v. Kane

Metcalf, J. The question on the trial of this case was, whether the defendant was answerable for the loss of the property which he attached in a suit against the plaintiff. The judgment which was recovered in that suit having been paid by the plaintiff, he was entitled to a return, by the defendant, of the attached property, unless it was destroyed or lost without the fault or negligence of the defendant himself, or of the keeper for whose fault or negligence the defendant was answerable. If attached property, of which due care is taken by the officer or keeper, is lost by fire or theft, the officer is not liable for the loss ; otherwise, if it be burned or stolen while due care to prevent such loss is omitted by the officer or keeper. Edwards on Bailm. 59. Story on Bailm. §§ 39, 130. Starr v. Moore, 3 McLean, 354. Bridges v. Perry, 14 Verm. 262. After the plaintiff, for the purpose of proving that the property was lost through the keeper’s negligence, had introduced evidence that the keeper, on many occasions, when about to be absent from the room where the property was, had left the door of the room open, we are of opinion that the defendant should have been permitted to introduce the evidence which he offered, that it was the keeper’s “ habit ” to lock that door, when about to be absent from the room. There was no direct evidence whether the room was open or locked when the property disap-peared. That, however, was a material question in the case ; and the jury should not have been left to decide it solely upon evidence of the keeper’s occasional carelessness, but should have been allowed to take also into consideration his habitual care. The probability that the property was taken away when the door was open might certainly have been lessened by the evidence which was excluded. What influence that evidence [41] would have produced on the minds of the jurors, we cannot know. Except the exclusion of the above mentioned evidence, we find nothing objectionable in the rulings made, or in the instructions given, on the trial. If, when the property was demanded of the defendant, he was entitled to further notice that the judgment in the suit, in which the attachment was made, had been paid, and the attachment dissolved, we are of opinion that he waived such notice by his reply to the demand, that the property had been lost, and he could not deliver it. It was objected, at the argument, that if the defendant were answerable to the plaintiff for the loss of the property, yet that, on the evidence, he was not guilty of a conversion of it to his own use, but guilty only of nonfeasance. And this would have been decisive against the maintenance of the action in its present form, if the bill of exceptions had clearly shown that the objection was taken at the trial. But as this does not clearly appear, the objection cannot now prevail. Brown v. Waterman, 10 Cush. 117. Exceptions sustained.