86

horse is stolen by thieves, the hirer is responsible therefor. So, if furnished lodgings are rented, and the renter's servants, children, guests, or boarders negligently injure or deface the furniture, he is responsible therefor.87 So, if the injury is done by subagents employed by the hirer, responsibility for the negligent acts of the subagents rests upon the hirer.88

In order that this may be true, however, the agent or servant must be acting within the scope of his employment." The relation of agency or service is limited strictly to the employment, and when the so-called agent or servant goes outside of the scope of such employment, he is no longer in legal contemplation an agent or servant. The term "scope of employment" is used in a broad sense, however, and contemplates the general course of the work of such agent or servant. Scope of employment, however, should be judged in relation to the specific act causing the loss or damage; and, if that particular act lies beyond such scope, the principal or master is not liable. But, if that specific act does lie within such scope, the principal or master is responsible, even though he may have in terms forbidden that particular act. Thus, the hirer of an automobile directs his chauffeur to drive the car alone to a certain place, but forbids the chauffeur from driving more than 20 miles an hour. The chauffeur, while proceeding to such place, wrecks the car, by negligently driving it at the rate of 50 miles an hour. The hirer is responsible to his bailor for the damage. The trend of modern decisions has been to broaden appreciably the meaning of "scope of employment"; but when the agent or servant steps entirely aside from the course of his employment, his act then becomes his own act, for which he alone,

86 Jones, Bailm. 89; COGGS v. BERNARD, 2 Ld. Raym. (Eng.) 909, Dobie Cas. Bailments and Carriers, 1; President, etc., of Salem Bank v. President, etc., of Gloucester Bank, 17 Mass. 1, 9 Am. Dec. 111.

87 Jones, Bailm. 89; Pothier, Contrat de Louage, note 193.

88 Story, Ag. §§ 308, 311, 452, 457; Randelson v. Murray, 3 Nev. & P. (Eng.) 239, 8 Adol. & E. (Eng.) 109; Bush v. Steinman, 1 Bos. & P. (Eng.) 404, 409; Hilliard v. Richardson, 3 Gray (Mass.) 349, 63 Am. Dec. 743; Laugher v. Pointer, 5 Barn. & C. (Eng.) 547, 553, 554; Boson v. Sandford, 2 Salk. (Eng.) 440, 441; Milligan v. Wedge, 12 Adol. & E. (Eng.) 737; Quarman v. Burnett, 6 Mees. & W. (Eng.) 499; Story, Bailm. § 401.

89 See McDonald v. Snelling, 14 Allen (Mass.) 290, 92 Am. Dec. 768; Philadelphia & R. R. Co. v. Derby, 14 How. 468, 14 L. Ed. 502; Ward v. London General Omnibus Co., 42 L. J. (Eng. C. P.) 265; 1 Halsbury, Laws of England, p. 553. See, also, Hofer v. Hodge, 52 Mich. 372, 18 N. W. 112, 50 Am. Rep. 256; Maxwell v. Eason, 1 Stew. (Ala.) 514; McCaw v. Kimbrel, 4 McCord (S. C.) 220; Hall v. Warner, 60 Barb. (N. Y.) 198; Smith v. Bouker, 49 Fed. 954, 1 C. C. A. 481; American Dist. Tel. Co. of Baltimore v. Walker, 72 Md. 454, 20 Atl. 1, 20 Am. St. Rep. 479.

and not the agent or master, is responsible. The question under discussion more properly belongs to the subject of agency or master and servant."0

Again, the bailee becomes responsible for the negligence of those whom he admits to the use of the thing hired. Such persons become, in a sense, the servants of the bailee, for whose negligent acts, resulting in loss or damage to the hired chattel, he can be held responsible by the bailor. Thus, if one hires furniture which he places in his room, and admits a third person to the enjoyment and use of such furniture, the bailor might hold the bailee for damage resulting from the negligent use of such furniture by the third person."1 If the hirer, however, had used due care to protect the furniture from use by third persons, as by securely locking the door of his room, and such third person had, by breaking down the door, entered the room and misused the furniture without the hirer's consent, then the third person (here a mere trespasser) alone, and not the hirer, would be liable to the bailor."

SAME-COMPENSATION OF THE BAILOR

55. The bailee must make compensation to the bailor according to the terms of the contract of hiring.

As the benefit of the bailment to the bailor consists in receiving the stipulated reward, it is the primary duty of the bailee to pay the agreed compensation to the bailor. When the bailment is

93

90 Jagg. Torts, 279; Storey v. Ashton, L. R. 4 Q. B. (Eng.) 476; Vanderbilt v. Richmond Turnpike Co., 2 N. Y. 479, 51 Am. Dec. 315; Evansville & C. R. Co. v. Baum, 26 Ind. 70; Cheshire v. Bailey, [1905] 1 K. B. (Eng.) 237. See, also, Sanderson v. Collins, [1904] 1 K. B. (Eng.) 628, distinguishing the rather extreme case of Coupe Co. v. Maddick, [1891] 2 Q. B. 413. See 1 Halsbury, Laws of England, p. 553.

91 Schouler, Bailm. § 146; cases cited in note 89. See, also, Smith v. Read, 6 Daly (N. Y.) 33; Holder v. Soulby, 8 C. B. N.. S. (Eng.) 254; Dansey v. Richardson, 3 El. & Bl. (Eng.) 144; GANNON v. CONSOLIDATED ICE CO., 91 Fed. 539, 33 C. C. A. 662, Dobie Cas. Bailments and Carriers, 81.

92 Schouler, Bailm. § 146.

93 Knickerbocker Trust Co. v. Ryan, 227 Pa. 245, 75 Atl. 1073; Cullen v. Lord, 39 Iowa, 302; Armijo v. Abeytia, 5 N. M. 533, 25 Pac. 777; Cushman v. Somers, 60 Vt. 613, 15 Atl. 315; Wilcox & Gibbs Sewing Mach. Co. v. Himes, 67 Hun, 648, 21 N. Y. Supp. 760; Moneyweight Scale Co. v. Woodward, 29 Pa. Super. Ct. 142; Van De Vanter v. Redelsheimer, 58 Wash. 38, 107 Pac. 847; Rogers v. McKenzie, 73 N. C. 487; Wright v. Melville, 3 C. & P. (Eng.) 542; 1 Halsbury, Laws of England, p. 552. Where a contractor to "shoot" a gas well for the owner caused a charge of nitroglycerine to go

fully completed, this ordinarily presents little difficulty. The contract is, as a rule, quite definite as to the compensation, which is usually, but not necessarily, in money. If the bailment is one of hiring, but the contract does not fix the compensation, then, as in other similar cases, the bailee must pay a reasonable price." What is reasonable is a question of fact, to be solved in the light of the particular circumstances of each case.

When, however, the contract of hiring was for a definite time, and the bailment is only partially completed, owing to the destruction (or damage rendering the chattel unfit for the use, thus practically amounting to destruction) of the hired chattel, the question of compensation has not been satisfactorily worked out in the rather few cases in which it has been presented. Here the inquiry as to who (bailor or bailee) was at fault in bringing about the destruction is a prime factor in the problem.

First, when the destruction is the fault of neither, it would seem (in the absence of a clear stipulation to the contrary) that neither bailor nor bailee can be sued for failure to complete the bailment, which has, of course, become impossible. But the bailee is liable pro tanto for such use of the chattel as he had prior to its destruction, paying for such use its reasonable worth."

The next case is when the destruction is due to the fault of

explode as to damage the well, and then obtained from the owner drilling tools to repair the damage, on an agreement to pay reasonable compensation for such tools, and the contractor used the tools therefor, its promise to pay a reasonable compensation was supported by a valid consideration. Independent Torpedo Co. v. J. E. Clark Oil Co., 48 Ind. App. 124, 95 N. E. 592. One contracting to pay a reasonable compensation for the use of another's drilling tools to repair a gas well is liable to pay a reasonable compensation for the time he has possession and use of the tools, and his liability is not limited to days of actual service; the word "use" applying to one's service, employment, or conversion to some purpose (quoting 8 Words and Phrases, pp. 7226, 7227). Id.

94 Cullen v. Lord, 39 Iowa, 302; Rider v. Union India Rubber Co., 28 N. Y. 379.

See, on this subject, Story, Bailm. & Carr. §§ 416-417a; Schouler, Bailm. & Carr. §§ 160-161; Goddard, Bailm. & Carr. § 123; 5 Cyc. 192. Cases on this subject are very rare. In Gleason v. Smith, 39 Hun (N. Y.) 617, the boiler broke down and bailor refused to repair it, but it was held the bailee must pay the agreed rent.

96 Williams v. Holcombe, 4 N. C. 33; WILKES v. HUGHES, 37 Ga. 301, Dobie Cas. Bailments and Carriers, 82 (death of slave); Bacot v. Parnell, 2 Bailey (S. C.) 424. See, also, George v. Elliott, 2 Hen. & M. (Va.) 5; Collins v. Woodruff, 9 Ark. 463; see Harrington v. Snyder, 3 Barb. (N. Y.) 380; Warth v. Mack, 79 Fed. 915, 25 C. C. A. 235, though here this contingency was covered by the contract. See, also, authorities in preceding note. That the bailor is not liable for nonperformance, see Stewart v. Stone, 127 N. Y. 500, 28 N. E. 595. 14 L. R. A. 215.

the bailor. Here it would seem that, in spite of the bailor's fault, the bailee should pay pro tanto for such use as he received, while the bailee should have a right of action against the bailor for the latter's wrong, resulting in the destruction of the chattel, before the expiration of the time agreed. Hence the bailee should be liable for the reasonable worth of his actual use, minus such damages as he has suffered from the wrong of the bailor." If such damage was greater than the reasonable worth of the bailee's use, then the bailee should recover such excess.

Finally, the destruction may have been due to the fault of the bailee. Here the bailee should not be allowed to set up his own fault as an excuse, and the bailor recovers the full compensation.99 If the chattel is only damaged, and is returned to the bailor, the bailee is entitled as an offset to the value (if any) of such use to the bailor, or to such person as he may have hired it, as could be made of the chattel during the remaining time of the bailment period."

SAME TERMINATION OF THE BAILMENT

56. Locatio rei may be terminated by—

1. Act of the parties.

(a) Accomplishment of the bailment purpose or expiration of the time for which bailment was created.

(b) Mutual consent of bailor and bailee.

(c) Bailee's wrong, at option of bailor.

2. Operation of law.

(a) Destruction of hired chattel.

Ordinarily death or change of legal status of the parties does

not terminate a bailment of this class.

See authorities cited in note 95. Such cases will be rare, since the bailee's use and control of the goods afford scant opportunity for destruction by the bailor's fault. In HICKOK v. BUCK, 22 Vt. 149, Dobie Cas. Bailments and Carriers, 63, the bailor took the mare from the bailee; but there the bailee was plaintiff and the bailor defendant in an action of trover, and it was held that plaintiff could recover.

98 See authorities cited in note 95; Bigbee v. Coombs, 64 Mo. 529. In HARTFORD v. JACKSON, 11 N. H. 145, Dobie Cas. Bailments and Carriers, 64, the bailor's creditors attached the property. Since the creditors had no right thus to disturb the bailee's possession, which is good against the world, it was held that the bailee was liable to the bailor for the agreed compensation. But see Muldrow v. Wilmington & M. R. Co., 13 Rich. (S. C.) 69, in which it was held that on the death of a slave during the time, due to bailee's negligence, the rent should be apportioned.

99 See Johnson v. Meeker, 96 N. Y. 93, 48 Am. Rep. 609, in which bailee abandoned the hired barge.

Act of the Parties

The termination of locatio rei by the three events set out under the head of "acts of the parties" is clear, and, as such bailments, in this respect, present no distinctive features, no further discussion of these is needed.1

It should be noted, however, in connection with the consent of the parties, that though locatio rei may be terminated by consent of both parties, neither the bailor nor the bailee alone has the right to terminate the bailment. This is true because there is a legal consideration moving from each party, on which he can base his rights against the other party. Of course, when the bailment is made terminable at the option of either party, it is a bailment at will, and either bailor or bailee may terminate it, and this is the case when it is indefinite as to time.'

Operation of Law

The destruction of the hired chattel necessarily ends the bailment, leaving the parties to work out their various rights, depending upon the circumstances surrounding such destruction.*

Since the bailee has a special property in the chattel, ordinarily, the death of the bailor does not terminate the bailment, and the bailee may hold such chattel, according to the terms of the contract of hiring, as against the personal representative of the bailor." In like manner, unless the bailment was a personal one, involving confidence reposed, it is not terminated by the bailee's death, but his rights pass to his personal representative. When, however,

1 Ante, § 20.

2 This follows from the fact that the bailment contract is binding on both the parties, and neither can rescind without the other's consent. The very idea of the bailee's special property in a bailment for a definite time precludes the idea of the bailor's right to end the bailment. See ante, p. 112.

3 Here, while the rights of each continue while the bailment continues, the failure to specify the time during which the bailment is to continue is equivalent to an agreement that either bailor or bailee has the option to end the bailment. See Learned-Letcher Lumber Co. v. Fowler, 109 Ala. 169, 19 South. 396; Gleason v. Morrison, 20 Misc. Rep. 320, 45 N. Y. Supp. 684; New York, L. E. & W. R. Co. v. New Jersey Electric Ry. Co., 60 N. J. Law, 338, 38 Atl. 828; Puffer & Sons Mfg. Co. v. Baker, 104 N. C. 148, 10 S. E. 254; Drake v. Redington, 9 N. H. 243.

4 See ante, p. 46.

This follows from the nature of the bailee's special property in the goods. It is well settled as to pledges that the pledgor's (bailor's) death does not affect the bailee's (pledgee's) special property in the goods pledged (bailed). Fulton v. National Bank of Denison, 26 Tex. Civ. App. 115, 62 S. W. 84. See Van Zile, Bailm. & Carr. § 82.

This is a general rule of contracts. See McKeown v. Harvey, 40 Mich. 226; Bambrick v. Webster Groves Presbyterian Church Ass'n, 53 Mo. App.