Kendall v. Morse

Bellows, J. The first question in this case is, whether the sheriff is liable for the goods attached, notwithstanding they were accidentally destroyed by fire. Hpon this point we are of the opinion that, like an ordinary bailee for hire, he is liable for damages to the goods that happen for want of ordinary care, but is not to be treated as an insurer. In Runlett v. Bell, 5 N. H. 433, the question was considered, and it wras held that for the loss of the goods, without his fault or neglect, the sheriff was not liable. In that case he had delivered the goods attached to a third person, who was apparently in good circumstances, for safe-keeping, taking his receipt for the same; but they were eventually lost through the receiptor’s insolvency, and it was decided that the sheriff' was not liable. This was, perhaps, a necessary deduction from the decision in Barrett v. White, 3 N. H. 210, where the sheriff was held liable for damages to hay, caused by its removal without giving the debtor an opportunity to procure some person to be responsible for it. The doctrine of Runlett v. Bell is recognized in Howard v. Whittemore, 9 N. H. 133; Barron v. Cobleigh, 11 N. H. 567. The doctrine that tíre sheriff is not liable as an insurer, but only for want of ordinary care, is fully recognized in New-York; Jenner v. Joliffe, 6 Johns. 9, and same case, 9 Johns. 381; Browning v. Harford, 5 Hill 588, where the question is much considered; and Cowen, J., regards the possession of a sheriff as analogous to that of an ordinary bailee of goods for the purpose of custody and sale ; like a factor under a del credere commission. The same doctrine is held by the Vermont courts, Bridge v. Perry, 14 Vt. 262, where it was held that officers attaching goods on mesne process are liable only for the same degree of diligence in keeping the property as other bailees for pay. So in Briggs v. Taylor, 28 Vt. 180, it is decided that the diligence of the sheriff^ like other bailees for hire, must be that which prudent men exercise in the conduct of their own affairs; and it is said that there is no substantial distinction between negligence and gross negligence. A similar doctrine, also, is laid down in Story on Bail., secs. 130, 162, where the sheriff is regarded as a bailee for a compensation. In opposition to this doctrine we find no adjudged case, and we have been referred to none but the case of Moore v. Westervelt, 1 Bosworth (N. Y.) 357; 19 U. S. Dig. 622, secs. 20, 22, where it seems to have been held, that if the officer leave the goods with the defendant in replevin, he will be liable as an insurer; though if he takes them into his own custody he will be bound to use only [556] ordinary caro and diligence — that care which a prudent man takes of his own property. This brings us to the question whether the sheriff has used ordinary care and diligence in keeping the goods ; and this is a question of fact which the auditor has not found. It will be necessary, therefore, that the report be recommitted for that purpose. The testimony of John Sise could hardly be regarded as relevant. In substance, he undertakes to state the rates of premium for the insurance of different classes of buildings, established by the insurance companies with which he had been connected, and denominating buildings, like the one in which were stored the goods in question, as extra hazardous; and stating, also, that there was a large increase of rates where wood shavings are made. This is simply stating how buildings like the one in question were regarded by those insurance companies, for the purpose of showing that it was not a safe place of deposit; and we are inclined to think it was incompetent. Whether it was a proper place of deposit or not, was a material inquiry, it is true, but we know no principle that would make the rules or practices of those insurance companies admissible in evidence on that question. It is, in fact, in its nature mere hearsay. Webber v. Eastern Railroad, 2 Met. 149; Goodall v. New-England, Ins. Co., 25 N. H. 191, where it was held that the practice of the insurance company was not admissible in evidence. In Hubbard v. Concord, 35 N. H. 60, it was decided that it was not competent to show that sidewalks in Boston and other cities were in similar condition to the one in question, either to prove that the latter was in proper condition, or that the plaintiff did not use due care in passing. There are, doubtless, cases where the usages of particular trades or business are allowed to be proved, but these are cases where the matters at issue relate to such trades or business, and the acts or contracts in question should properly be interpreted in the light of such usages. In this case the evidence offered has nothing to do with any usage touching the acts in question, but is merely a statement of the rules by which certain insurance companies determine the rates of premium, and it may be liable to the still further objection that it does not appear to be represented as the prevailing usage in that business. However, independent of this objection, we think the evidence inadmissible. The case should, therefore, be discharged, and the Report recommitted.