Hackney v. Perry

DOWDELL, J. The fifth, sixth, seventh, eighth, ninth, and eleventh counts of the complaint are each in [633] case, and consequently actions ex delicto. The gravamen of each, except the sixth, is the alleged negligence of the defendants in the nonperformance of a duty owing to the plaintiff arising out of a contract, whereby the cotton in question was lost to the plaintiff. In these counts as last amended the averments as to negligence were sufficient, and the counts were not in this respect subject to demurrer. — R. R. Co. v. Flippo, 138 Ala| 487, 35 South. 457; A. G. S. R. v Johnston, 128 Ala. 283, 29 South. 771; Ga. Pac. R. R. Co. v. Davis, 92 Ala. 307, 9 South. 252, 25 Am. St. Rep. 47. The defendants, under the allegations of the complaint, were such agents as may properly be termed “bailees for hire,” and as such were bound to ordinary diligence. As to the measure of care and diligence there can be no distinction in principle between a ginner of cotton for hire and a warehouseman for deposit and storage for hire. Where a bailee of goods, upon demand made, fails to redeliver them, or does not account for a failure to make delivery, prima facie, negligence will be imputed to him; and, the burden of proving a loss without the Avant of ordinary care is devolved upon him. As was said in Davis & Son v. Hurt, 114 Ala. 150, 21 South. 468: “The rule is founded in necessity, and upon the presumption that a party who, from his situation, has peculiar, if not exclusive, knowledge of facts, if they exist, is best able to prove them. If the bailee, to whose possession, control, and care the goods are intrusted, will not account for the failure or refusal to deliver them oh demand of the bailor, the presumption is not violent that he has been wanting in diligence, or that he may have wrongfully converted, or may wrongfully detain, them; or, if there be injury to or loss of them during the bailment, it is but just that he be required to show the circumstances, acquitting himself of the want [634] of diligence it was bis duty to bestow. When tbe bailee fails to return the goods on demand, tbe principal bas an election of remedies. He may sue in assumpsit for a breach of contract, or in case for negligence, or, if there bas been a conversion of the goods, in trover for tbe conversion.” — Davis & Son v. Hurt, 114 Ala. 149, 21 South. 468; Seals v. Edmondson, 71 Ala. 509. Tbe principle is well established and recognized that in actions for tort, as a general rule, where two or more are jointly sued as defendants, according to tbe proof, a recovery may be bad as to all, or any number less than all. But this rule is not without its exception, as,- for instance, where tbe action is in case for a negligent performance of, or a negligent failure to perform, a duty arising out of a contract, whereby .injury and damages result. In such a case tbe averment of tbe contract from which the alleged duty springs is made a material allegation of the complaint, which must be proven as charged, or else there is a fatal variance between the allegation and the proof. This doctrine is recognized in the ■case of Northern Ala. R. R. v. Mansell, 138 Ala. 548, 36 South. 459; McGhee v. Drisdale, 111 Ala. 597, 20 South. 391; Dean v. E. T. Va: & Ga. and L. & N. R. R. Co., 98 Ala. 596, 13 South. 489. In tbe counts of the complaint above mentioned, except the sixth count, the contractu-ral relation from which the alleged duty arose is averred as to all of the defandants. There was a total failure of evidence showing any contractural relation between the plaintiff and the defendant Burns. This was a fatal variance as to allegation and proof, which entitled the defendants to the general charge as requested under those counts. In the sixth count (if the complaint the contract out of which the alleged duty arose is averred to have been made by and between the plaintiff and the defendants [635] Hackney Bros., and the count further avers that these defendants wrongfully and negligently delivered the cotton in question to It. B. Burns, the other defendant, “who, with knowledge of such wrongful act, and of plaintiff’s ownership of such cotton, received the same, and has failed to redeliver the same to plaintiff, although demanded by the plaintiff before the bringing of this suit, and on account of the negligence of said defendants the plaintiff .has lost the said cotton so delivered, and has been damaged in the sum of $65; hence this suit.” It is evident that there are two separate and distinct torts complained of. That of the defendants Hackney Bros., consisted of a negligent performance, or rather a negligent failure to perform,' a duty arising out of a contract, in which the element of motive or purpose is wanting. The Avrong is not a positive or affirmative act, but, on the contrary, negative. No contractu-ral relation existed between the plaintiff and defendant Burns, and hence there could be no negligent failure on his part to perform a duty arising out of contract. His tort Avas wholly of a different character from that of the other defendants. There exists no “ligament of a common purpose or motive” between the defendants, as is expressed in Powell v. Thompson, 80 Ala. 51. There are, therefore, joined-in this count two distinct torts by different defendants. This cannot be done. The count for this reason Avas open to the demurrer interposed, and the demurrer should have been sustaind. The complaint contained other counts besides those we have already considered. The first and second are counts in trespass, and in Code form. On these no questions are presented. The third and fourth are counts in trover, and are in Code form. On this phase of the case, charge No. 15, requested by the defendants Hackney Bros., exacted too high a degree of proof. It is not [636] required to satisfy tbe jury, but to reasonably satisfy them. The charge, for this reason, if otherwise good, was properly refused. The evidence failed to show a general agency of the plaintiff’s son, a boy of 15 years old; and, the defendants undertaking to show that the cotton was delivered to Burns on instructions by plaintiff’s son, it was competent for the plaintiff to show that her son had no authority to give such instructions. For the errors indicated, the judgment is reversed and the cause remanded. Reversed and remanded. Tyson, C. J., and A.ndeuson and MoCleddan, JJ., concur.