Latham v. Elrod

WALKER, P. J. Each of the four counts of the complaint alleged that the defendant undertook to treat the plaintiff’s mule, and claimed damages for the death of the animal, which was attributed to the negligence of the defendant in treating it. Only in the fourth count was it averred that the defendant’s undertaking to treat the mule was for a reward. As applicable to the other counts, written charge 4, given at the request of the defendant, cannot be approved. In the light of the evidence in the case tending to show negligence on the part of the defendant, that instruction asserts in effect that, if his undertaking to treat the mule was gratuitous or [458] not “for a fee to be paid him,” then he was not chargeable for negligence in the matter. This is not the law. When one ventures to deal with the property of another, whether gratuitously or for a reward, he puts himself under a duty to that person in reference to the property dealt with. Generally the duty is not the same in the one case as it is in the other. But in neither kind of case is one free from liability who negligently or carelessly injures or destroys the property of another. Even when a bailment is for the sole benefit of the bailor, the bailee is not exempt from a duty to exercise some care in reference to the subject of the bailment. — Haynie v. Waring & Co., 29 Ala. 263; 5 Cyc. 186. When the service undertaken is one requiring care and skill, whether it is undertaken for a reward or not, the rule seems to be that liablility is incurred by a failure to exercise reasonable care and skill appropriate to the undertaking and the situation and surroundings of the parties.— Du Bois v. Decker, 130 N. Y. 325, 29 N. E 313, 14 L. R. A. 429, 27 Am. St. Rep. 529; McCandless v. McWha, 22 Pa. 261, 269; 30 Cyc. 1573, 1581. Certainly one who gratuitously undertakes to render such a service is not free from liability if he negligently fails to use such care or skill as he is capable of. Other questions presented need not be passed on, as they are not such as are likely to arise in another trial. Reversed and remanded.