Meridian Fair & Exposition Ass'n v. North Birmingham Street Railway Co.

Campbell, C. J., delivered the opinion of the court. The balloon was loaned by its owner to enable the aeronaut, Fisk, by its use, to carry out his engagement with the appellant. The owner was not willing to trust Fisk for the return of the balloon, and required the appellant to become responsible for its return, and, receiving this guaranty, the balloon was loaned for use by Fisk in execution of his contract with the appellant, which wTas in writing, and had been inspected by the owner of the balloon. While being thus used, it was destroyed by fire occurring in an ascension, one hundred and twenty or thirty feet above the earth, from some cause not explained. The just interpretation of the obligation assumed by the appellant for the return of the balloon is that it was subject to the implied condition that, if it was destroyed in the use for which it was loaned, the obligation should be discharged. It was destroyed by fire, in an aseen [812] sion caused by Fisk, who was known to the loaner of the balloon to be an experienced person at the business, and to whom it was willing to intrust it, with a responsible guaranty for its return after the contemplated use. The suggestion is that the apprehension was, not that any harm would result from the use of the balloon, but there was danger of failure to return it to its owner after use. Hence, the guaranty, not against destruction or accident in its use on the occasion for which it was loaned, and by the person for whose use it was procured, but for its return afterwards. The assumption of the appellant was not for the skill or care of Fisk in using the balloon, but only for its return after its use. The risk of its use was not assumed by the appellant. That was taken by the owner who intrusted it for Fisk’s-use, only requiring the obligation of appellant for its return after the contemplated use of it. While in use by Fisk, on the occasion for which the loan was made, it was destroyed by lire originating in some inexplicable manner. This was clearly shown, and there is no hint in the evidence of any culpability of Fisk or anybody else, unless the mere fact of fire raises a presumption of negligence. It does not, and, if the appellant was held bound for want of skill or care of Fisk in using the balloon, the plaintiff has not shown a right to recover, for the destruction of the balloon by fire is shown, and there is nothing in the circumstances of which to predicate blame on anybody. When a bailee in an action for non-return of an article shows that it was destroyed by fire under circumstances fully disclosed, and not suggestive of any want of due care, it devolves on the bailor seeking to hold him responsible to turn the scale b}T some evidence inculpatory of the defendant. The law does not intend or presume negligence. It does make the reasonable requirement of the bailee, who fails to return the thing bailed, to show that he cannot return it, and why; and when he discloses fully the fact showing the impossibility of a return because of the destruction of the thing, [813] with the attendant circumstances, and nothing connected with his showing in this respect inculpates him, the plaintiff must show liability or fail in his action. 2 Kent’s Com., *587; Story on Bailments, §§410, 411, 412, 454; Schouler’s Bailments, p. 23 et seq.; 2 Am. & Eng. Enc. L., p. 59; 24 Am. Dec., 143, and note on p. 150 et seq.; Mills v. Gilbreth, 47 Maine, 320. Upon the facts disclosed, as shown by the record, the defendant sufficiently accounted for the non-return of the balloon, and the plaintiff was not entitled to recover. Reversed, and remanded for a new trial.