69

by the bailee's fault. Thus, when the horse becomes sick unexpectedly, the expense of a veterinarian should be borne by the bailor. It is generally held that, in the absence of such a stipulation in the contract, the bailor is under no obligation to pay the expenses of keeping the thing (such as a machine) in repair."

SAME-DEGREE OF CARE TO BE EXERCISED BY THE BAILEE

53. The degree of diligence exacted of the bailee in the use of the hired chattel is placed at ordinary care.

Since a locatio rei is a bailment for the mutual benefit of the bailor and bailee, the bailee must exercise ordinary care in using and keeping the hired chattel." The legal duty of the bailee having been thus fixed, any breach of that duty is negligence, which renders the bailee liable to the bailor for any damage thereby proximately occasioned. Ordinary care, however, in the absence of

6. One who hires a horse is not liable for expense of caring for it, if it be comes sick in his hands without his fault; but the owner is liable therefor to third person, who, with his knowledge, cares for it at request of hirer. Leach v. French, 69 Me. 389, 31 Am. Rep. 296.

70 Gleason v. Smith, 39 Hun (N. Y.) 617; Central Trust Co. v. Wabash. St. L. & P. R. Co. (C. C.) 50 Fed. 857; Sutton v. Temple, 12 M. & W. (Eng.) 52; Herman v. Nye, 6 Q. B. D. (Eng.) 685; 1 Halsbury, Laws of England, p. 552. A provision in a lease of a machine, binding the lessee to keep the same in working order, requires the lessee to have some one in charge of the machine capable of managing it, and imposes on him the duty of exercising reasonable attention to keep the same in good working order. J. T. Stark Grain Co. v. Automatic Weighing Mach. Co., 81 Ark. 609, 99 S. W. 1103. Where a lease of machinery contained a covenant on the part of the lessor to repair the then existing plant so that the same may be successfully operated, the lessor is bound to repair all the machinery which then comprises the plant, but he is not required to furnish additional machinery or larger pumps. Sharpless v. Zelley, 37 Pa. Super. Ct. 102.

71 See Jones, Bailm. p. 88; Story, Bailm. §§ 398, 399; Domat, Civ. Law, lib. 1, tit. 4, § 3, pars. 3, 4; 1 Bell, Comm. (7th Ed.) pp. 481, 483. See, also, cases infra; Collins v. Bennett, 46 N. Y. 490; Chamberlin v. Cobb, 32 Iowa, 161; Millon v. Salisbury, 13 Johns. (N. Y.) 211; Handford v. Palmer, 2 Brad. & B. (Eng.) 359; Clark v. U. S., 95 U. S. 539, 24 L. Ed. 518. See, on this subject generally, the following recent cases: GANNON v. CONSOLIDATED ICE CO., 91 Fed. 539, 33 C. C. A. 662, Dobie Cas. Bailments and Carriers, 81; WISECARVER v. LONG & CAMP, 120 Iowa, 59, 94 N. W. 467, Dobie Cas. Bailments and Carriers, 78; Bradbury v. Lawrence, 91 Me. 457, 40 Atl. 332; Alden v. Grande Ronde Lumber Co., 46 Or. 593, 81 Pac. 385; Phillips v. International Text Book Co., 26 Pa. Super. Ct. 230; SINISCHALCHI v. BAS LICO (Sup.) 92 N. Y. Supp. 722, Dobie Cas. Bailments and Carriers, 80.

the bailee's active wrongdoing or special contract, is the full measure of the bailee's duty." When this duty has, therefore, been fulfilled, the bailee is not responsible for any loss or damage to the bailed chattel, regardless of how it happened. When loss of damage occurs, then, the apposite inquiry is: Was such loss or damage due to the bailee's negligence—that is, to the failure of the bailee to exercise ordinary care?

Ordinary care or diligence, as we have already seen," is that degree of care which men of ordinary prudence would exercise under like circumstances. This ordinarily prudent man is the standard, and by means of comparison with him the whole scheme of the requisite care to be exacted of bailees has been evolved. Slight care, it has been pointed out, is that exercised by men of less than ordinary prudence; while great care is that expected of men of more than ordinary prudence. The ordinary care of the mutual benefit bailee is higher in the scale of care than the slight care of the bailee in a bailment for the bailor's sole benefit; it is correspondingly lower than the great care exacted of the bailee. when the bailment is solely for the bailee's benefit.

Here should be emphasized what has been already said in other

72 One who leased moving picture films for use was a bailee, and as such only bound to exercise ordinary care in using the films. MILLER v. MILOS. LOWSKY, 153 Iowa, 135, 133 N. W. 357, Dobie Cas. Bailments and Carriers, 79. In an action to recover damages for injuries to a horse alleged to have happened while the horse was in the defendant's possession. as a bailee for hire, the court commits no error in charging as follows: "The rule of law is that he is obliged to use ordinary diligence and care in order to preserve the property, and if you find in this case that he has not used ordinary diligence and care, but that the animal was hurt because he did not use ordinary diligence and care, then the plaintiff is entitled to recover. On the other hand, if you find that he did use ordinary diligence and care, your verdict should be for the defendant." Brannan v. Haldeman, 35 Pa. Super. Ct. 286. A contract of hire of chattels being one of mutual benefit, the hirer, in the absence of any agreement to the contrary, is only bound to exercise ordinary diligence in taking care of the property, and it is error to charge the jury Civ. Code 1895, § 2895, defining "extraordinary diligence," and section 2900, defining "gross neglect"; such instructions being calculated to mislead or confuse the jury in applying the facts to the proper rule of diligence. Evans & Pennington v. Nail, 1 Ga. App. 42, 57 S. E. 1020. As to effect of special contract on the bailee's liability, see Rapid Safety Fire Extinguisher Co. of New York v. Hay-Budden Mfg. Co., 77 App. Div. 643, 79 N. Y. Supp. 1145; Direct Nav. Co. v. Davidson, 32 Tex. Civ. App. 492, 74 S. W. 790. Where a bailee on hire of a horse agrees to return it in as good condition as when received, or pay for it, he is liable where the horse died while in his possession, though without fault on his part. Grady v. Schweinler, 16 N. D. 452, 113 N. W. 1031, 14 L. R. A. (N. S.) 1089, 125 Am. St. Rep. 674, 15 Ann. Cas. 161.

13 Ante, §§ 16, 29, 40.

connections on ordinary care. The term is one of intense relativity," and the question whether the bailee has exercised such care can never be accurately answered, apart from the peculiar circumstances of each individual case. The nature of the chattel, its value, weight, whether it is animate or inanimate, and a thousand other considerations, enter into the problem, which is, in each particular instance, an intensely practical one, to be worked out in harmony with the dictates of sound common sense." Again,

74 Where plaintiff rented a truck to defendant D., who placed the same in charge of an experienced driver, and the truck was injured in a collision with a street car, owing to the negligence of the motorman, without any negligence on the part of the driver, the bailees were not liable to plaintiff for the damages sustained. Littlefield v. New York City Ry. Co., 51 Misc. Rep. 637, 101 N. Y. Supp. 75. A bailee of a horse and wagon for hire is liable for the value thereof, if he fails to exercise reasonable care to protect it from theft. Kleiner v. Cohn, 75 Misc. Rep. 116, 132 N. Y. Supp. 779. Defendants hired a horse and wagon from plaintiff, which was taken to their place of business at 8 o'clock a. m., and from 8 until 11 o'clock the driver worked in defendants' factory, during which time no watch was kept over the wagon, except that every 10 or 15 minutes one of defendants' workmen would look from the fifthstory window to see if the horse and wagon was still there. The horse and wagon was stolen. Held, that defendants were negligent in not keeping a better watch to protect the horse and wagon. Id. Where, from its nature, the hirer must know that the thing is liable to deterioration or injury, this fact demands from him the exercise of greater diligence than in the case of a thing not supposed to be liable to injury from use. Beale v. South Devon Ry. Co., 12 Wkly. R. (Eng.) 1115; Wilson v. Brett, 11 Mees. & W. (Eng.) 113. See FORTUNE v. HARRIS, 51 N. C. 532, Dobie Cas. Bailments and Carriers, 61; Rooth v. Wilson, 1 Barn. & Ald. (Eng.) 59. As to bailor's failure to inform bailee of special circumstances, see Bradley v. Cunningham, 61 Conn. 485, 23 Atl. 932, 15 L. R. A. 679. As to bailee's failure to provide appliances to avoid consequences of an accident, see Stacy v. Knickerbocker Ice Co., 84 Wis. 614, 54 N. W. 1091.

75 Since the whole duty of the bailee, in this class of cases, is to exercise good faith and ordinary diligence in carrying out the contract, he is not liable when the thing is lost or injured by overwhelming force or inevitable accident. Story, Bailm. §§ 408-412; Watkins v. Roberts, 28 Ind. 167; McEvers v. The Sangamon, 22 Mo. 187; Field v. Brackett, 56 Me. 121; Hyland v. Paul, 33 Barb. (N. Y.) 241; Ames v. Belden, 17 Barb. (N. Y.) 513; Reeves v. Constitution, Gilp. 579, Fed. Cas. No. 11,659. Even if the loss is not strictly inevitable, there is no liability if there has been no omission of reasonable diligence on the part of the bailee. Thus, a warehouseman is not responsible for the destruction of goods, deposited there for hire, by rats or mice, if he has used the ordinary precautions to guard against the loss. Cailiff v. Danvers, Peake (Eng.) 114. See, also, Menetone v. Athawes, 3 Burrows (Eng.) 1592; Longman v. Galini, Abb. Shipp. (Eng.) pt. 3, c. 4, § 8; Id. (5th Ed.) p. 259, note d; 1 Bell, Comm. (5th Ed.) pp. 453, 455, 458; Id. (4th Ed.) § 394; Reeves v. The Constitution, Gilp. 579, Fed. Cas. No. 11,659. So, if the owner of slaves lets them to the master of a vessel for a voyage, and they run away in a foreign port, the master who has acted in good faith and with reasonable care is not responsible for their loss, although he might

what has already been said in connection with the estoppel of the bailor when he has knowledge of the bailee's character, skill, or manner of keeping the chattel is equally applicable here." Accordingly, when a horse is hired to a one-armed man, the bailor cannot expect the care that a man with two arms might exercise. Thus, in the case of the most frequent instances of locatio rei, the hiring of a horse," ordinary care demands that the hirer supply him with suitable food during the time of the hiring.78 If the hired horse becomes exhausted, the hirer should abstain, temporarily at least, from using him." If the horse falls seriously sick during the journey, the hirer ought to procure the aid of a veterinarian, if one can be obtained within a reasonable time or distance.80

Of course, in the class of bailments now under consideration, the skill of the hirer is not such an important element, nor one demanding the same consideration from the bailor, as in those bailments where services are hired about or upon a chattel. In the latter case, the bailor creates the bailment for the express purpose of securing the services of the bailee; in the former, the use of the thing hired is the prime object of the bailment, while any services rendered by the bailee are merely incidental to his use.

have exercised a higher power of restraint or confinement over them. Beverly v. Brooke, 2 Wheat, 100, 4 L. Ed. 194. Where, however, the bailee's negligence exposed the thing hired to danger of injury in the way in which it was injured, or contributed to such injury, he is liable. Buis v. Cook, 60 Mo. 391; Eastman v. Sanborn, 3 Allen (Mass.) 594, 81 Am. Dec. 677; Edwards v. Carr, 13 Gray (Mass.) 234; Wentworth v. McDuffie, 48 N. H. 402; SINISCHALCHI v. BASLICO (Sup.) 92 N. Y. Supp. 722, Dobie Cas. Bailments -and Carriers, 80.

76 Ante, pp. 69, 90; Schouler, Bailm. § 138. But see, also, Mooers v. Larry, 15 Gray (Mass.) 451.

77 As to what constitutes ordinary diligence on the part of the hirer of a horse, see Eastman v. Sanborn, 3 Allen (Mass.) 594, 81 Am. Dec. 677; Cross v. Brown, 41 N. H. 283; Banfield v. Whipple, 10 Allen (Mass.) 27, 87 Am. Dec. 618; Edwards v. Carr, 13 Gray (Mass.) 234; Wentworth v. McDuffie, 48 N. H. 402; Rowland v. Jones, 73 N. C. 52; Ray v. Tubbs, 50 Vt. 688, 28 Am. Rep. 519; Buis v. Cook, 60 Mo. 391; McNeill v. Brooks, 1 Yerg. (Tenn.) 73; Harrington v. Snyder, 3 Barb. (N. Y.) 380; Jackson v. Robinson, 18 B. Mon. (Ky.) 1; Thompson v. Harlow, 31 Ga. 348; United Tel. Co. v. Cleveland, 44 Kan. 167, 24 Pac. 49.

78 Handford v. Palmer, 2 Brod. & B.

(Eng.) 359, 5 Moore, 74; Eastman v. Sanborn, 3 Allen (Mass.) 594, 81 Am. Dec. 677.

79 Bray v. Mayne, 1 Gow. (Eng.) 1. See Thompson v. Harlow, 31 Ga. 348; Graves v. Moses, 13 Minn. 335 (Gil. 307); Vaughan v. Webster, 5 Har. (Del.) 250.

80 Story, Bailm. § 105; Dean v. Keate, 3 Camp. (Eng.) 4. See, also, Thompson v. Harlow, 31 Ga. 348.

Liability of Joint Bailees

Where two persons jointly hire a thing for use, and it is injured during such use by the hirers, both may be made to answer for the misconduct or negligence of either one.81 In a case, however, in which only one hires a thing-as, for instance, a wagonand invites another to share in its use, and such other person does so, but without exercising any control, and simply as a passenger, only he who has hired the wagon is responsible.82

SAME-LIABILITY OF BAILEE FOR ACTS OF HIS AGENTS OR SERVANTS

54. The bailee is liable for the negligence of his agents and servants within the scope of their employment, and also for

the negligent acts of those whom he permits to use the thing hired.

The bailee is responsible, not only for his personal negligence, but he may be held liable for the negligence of his agents or servants.88 Thus, by the doctrine of "qui facit per alium facit per se" or "respondeat superior," the agent or servant becomes a mere instrumentality by which the principal or master accomplishes his ends; so that the act of the agent or servant becomes the act of the principal or master, who becomes responsible for the consequences, whether beneficial or not, flowing from such acts.** If, therefore, a hired horse is ridden by the servant of the hirer so immoderately that the horse is injured or killed thereby, the hirer is personally responsible. So, if the servant of the hirer negligently leaves open the door of the hirer's stable and the hired.

85

81 Davey v. Chamberlain, 4 Esp. (Eng.) 229; O'Brien v. Bound, 2 Speers (S. C.) 495, 42 Am. Dec. 384.

82 Davey v. Chamberlain, 4 Esp. (Eng.) 229; O'Brien v. Bound, 2 Speers (S. C.) 495, 42 Am. Dec. 384; Dyer v. Erie Ry. Co., 71 N. Y. 228; Story, Bailm. § 399. But see, also, Banfield v. Whipple, 10 Allen (Mass.) 27, 87 Am. Dec. 618.

83 Pothier, Contrat de Louage, notes 193, 428; 2 Kent, Comm. (4th Ed.) lect. 40, pp. 586, 587; Pothier, Pand. lib. 19, tit. 2, note 31. Pothier holds the hirer responsible for the default or negligence of his boarders, guests, and undertenants. Pothier, Contrat de Louage, note 193; 1 Domat, bk. 1, tit. 4, § 2, art. 6. See, also, 1 Bell, Comm. (4th Ed.) § 389; 1 Bell, Comm. (5th Ed.) pp. 454, 455.

84 Schouler, Bailm. (2d Ed.) § 145; Jaggard, Torts, 239-280; Mechem on Agency, §§ 703, 704.

85 Jones, Bailm. 89; 1 Bl. Comm. 430, 431; 1 Domat, bk. 1, tit. 4, § 2, art. 5; 1 Bell, Comm. (5th Ed.) p. 455; 1 Bell, Comm. (4th Ed.) § 389.