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will then prevent a recovery by the bailor for the loss or injury, the loss or injury then falling on the bailor under the principle res perit domino." Proof of loss or injury, standing alone, accordingly constitutes as to negligence the preponderance of evidence required in civil causes to make out a case.

The justification for this rule is found in the fact that experience shows, in the great majority of cases, that the exercise by the bailee of the particular degree of care which the bailment demands will be sufficient to prevent the loss of, or injury to, the bailed goods. Another, and perhaps a stronger, reason is that the bailee, in possession and control of the goods, has the fullest opportunities of knowing just how the loss or injury occurred, while just the opposite is true of the bailor.

The rule given above is sometimes termed the modern rule, because it has the overwhelming support of the modern cases. There are quite a few cases, most of them old, though, holding that proof of loss or injury alone does not even make out a prima 826, Dobie Cas. Bailments and Carriers, 27. See, also, cases cited in preceding note. When a bailor shows that goods were delivered to the bailee in good condition and have been lost, destroyed, or returned in a damaged condition, negligence of the bailee is shown prima facie, and the burden rests upon him to show that the loss resulted from a cause prima facie exonerating him from negligence, and, when he shows loss by burglary, fire, etc., the burden shifts to the bailor to show negligence. Yazoo & M. V. R. Co. v. Hughes, 94 Miss. 242, 47 South. 662, 22 L. R. A. (N. S.) 975. Where a horse is delivered in good condition to a blacksmith to shoe, and shortly thereafter is found badly cut, a presumption of negligence by the blacksmith arises, authorizing a recovery for the injury, unless rebutted to the satisfaction of the jury. Johnson v. Perkins, 4 Ga. App. 633, 62 S. E. 152. An unreasonable, improbable, or impossible explanation of an injury to property of bailor while in the hands of bailee may be equivalent to an admission of liability, and, in any event, such an explanation, as well as no explanation, may be held by the jury to be a failure by bailee to show proper diligence. Johnson v. Perkins, 4 Ga. App. 633, 62 S. E. 152.

77 Bailee may make out a prima facie defense by showing that the injury or loss occurred under circumstances not in themselves imputing any fault to him. This then imposes on the bailor plaintiff the duty to bring forward evidence to prove some negligence of the bailee defendant, as that the bailee was negligent in exposing the property to the risk of harm, or in failing to avoid or minimize injury to the goods after the danger was known. HUNTER v. RICKE BROS., 127 Iowa, 108, 102 N. W. 826, Dobie Cas. Bailments and Carriers, 27; Standard Brewery v. Bemis & Curtis Malting Co., 171 Ill. 602, 49 N. E. 507; Seals v. Edmondson, 71 Ala. 509; Beardslee v. Perry, 14 Mo. 88; Schwerin v. McKie, 51 N. Y. 180, 10 Am. Rep. 581; First Nat. Bank of Carlisle v. Graham, 85 Pa. 91, 27 Am. Rep. 628; Cochran v. Dinsmore, 49 N. Y. 249; Cox v. O'Riley, 4 Ind. 368, 58 Am. Dec. 633; Boies v. Hartford & N. H. R. Co., 37 Conn. 272, 9 Am. Rep. 347; Logan v. Mathews, 6 Pa. 417; Tompkins v. Saltmarsh, 14 Serg. & R. (Pa.) 275; Malaney v. Taft, 60 Vt. 571, 15 Atl. 326, 6 Am. St. Rep. 135.

facie case against the bailee, on the ground that the law tends to presume one diligent rather than negligent, and that therefore the bailor plaintiff must go further and connect such loss or injury with some negligent act or omission on the part of the bailee defendant.78

BAILEE MUST ACT IN GOOD FAITH

18. The bailee must at all times exercise good faith in carrying out the purpose of the bailment. For his fraud or positive wrong he is always liable.

A bailment is not a technical trust, nor is the relation one of the closest confidence or uberrimæ fidei as it is called in the law; but the relation ordinarily involves, to a limited extent, at least, the reposal of some confidence in the bailee. Ample warrant is therefore found for holding the bailee to a standard of strict honesty and good faith in the execution of the bailment purpose. For reasons much stronger than in the case of his negligence, the bailee is held liable for the consequences of his fraud or willful wrongdoing." As we have seen, the courts are unanimous in

78 Tompkins v. Saltmarsh, 14 Serg. & R. (Pa.) 275; Schmidt v. Blood, 9 Wend. (N. Y.) 268, 24 Am. Dec. 143; James v. Orrell, 68 Ark. 284, 57 S. W. 931, 82 Am. St. Rep. 293; 2 Kent, Comm. (4th Ed.) Lect. 40, p. 587; Adams v. Inhabitants of Carlisle, 21 Pick. (Mass.) 146; Harrington v. Snyder, 3 Barb. (N. Y.) 380; Finucane v. Small, 1 Esp. 315; Butt v. Great Western R. Co., 11 C. B. 140; Smith v. First Nat. Bank in Westfield, 99 Mass. 605, 97 Am. Dec. 59; Cross v. Brown, 41 N. H. 283; Carsley v. White, 21 Pick. (Mass.) 254, 32 Am. Dec. 259; Brind v. Dale, 8 Car. & P. 207; Foote v. Storrs, 2 Barb. (N. Y.) 326; Browne v. Johnson, 29 Tex. 40, 43. This is the English rule. Finucane v. Small, 1 Esp. 315; Cooper v. Barton, 3 Camp. 5, note; Harris v. Packwood, 3 Taunt. 264; Gilbart v. Dale, 5 Adol. & E. 543.

79 Corotinsky v. Cooper, 26 Misc. Rep. 138, 55 N. Y. Supp. 570; Kahaley v. Haley, 15 Wash. 678, 47 Pac. 23; Chew v. Louchheim, 80 Fed. 500, 25 C. C. A. 596; Martin v. Cuthbertson, 64 N. C. 328; Lane v. Cameron, 38 Wis. 603; Cullen v. Lord, 39 Iowa, 302; Line v. Mills, 12 Ind. App. 100, 39 N. E. 870; Fisher v. Kyle, 27 Mich. 454; Ross v. Southern Cotton-Oil Co. (C. C.) 41 Fed. 152; Wintringham v. Hayes, 144 N. Y. 1, 38 N. E. 999, 43 Am. St. Rep. 725; Townsend v. Rich, 58 Minn. 559, 60 N. W. 545; Foster v. President, etc., of Essex Bank, 17 Mass. 479, 9 Am. Dec. 168; Sodowsky's Ex'r v. McFarland, 3 Dana (Ky.) 204; Calhoun v. Thompson, 56 Ala. 166, 28 Am. Rep. 754; McMahon v. Sloan, 12 Pa. 229, 231, 51 Am. Dec. 601. Bailee pledging another's property without authority is guilty of conversion; and both bailee and pledgee are liable in trover, whether pledgee knew real state of title or not. Thrall v. Lathrop, 30 Vt. 307, 73 Am. Dec. 306. Bailees for special purpose have no right to sell property bailed, and, upon such sale, bailment is determined, and real owner may replevy it from vendee. Emerson v. Fisk, 6

refusing to permit the bailee to contract against such liability. Negligence is more or less negative, and may, of course, consist in a mere omission or failure to take such steps as due care demands. Fraud or willful wrongdoing, however, is positive, involving a measure of moral turpitude.

The bailee is, of course, liable, irrespective of the question of negligence or fraud, for any absolute breach of the bailment contract.80 Such breaches, however, are usually accompanied by positive wrong on the part of the bailee.

REDELIVERY OF BAILED GOODS BY THE BAILEE

19. The bailee must redeliver the goods, unless legally excused, at the termination of the bailment, according to the bailor's directions. When he has notice of the claim of a third person adverse to the bailor, the bailee is an insurer as to his delivery to the right person.

As is indicated in the definition of a bailment, it is the normal duty of the bailee to redeliver the goods according to the directions of the bailor, and these directions usually, but not always, contemplate a redelivery to the bailor. If, in such a case, the bailee in good faith delivers the goods to the bailor, without notice of any adverse claim, the bailee will not be responsible. The

81

Greenl. (Me.) 200, 19 Am. Dec. 206. Bailment requires on the part of the bailee the utmost good faith as to every matter wherein the interest of the bailor may be affected. Morris Storage & Transfer Co. v. Wilkes, 1 Ga. App. 751, 58 S. E. 232. See, also, Haines v. Chappell, 1 Ga. App. 480, 58 S. E. 220. 80 These are usually cases of conversion of the bailed goods by the bailee. See preceding note. A bailee is liable in an action of tort for an injury to bailed property occurring during a use of it by him, or by others with his consent, which was neither expressly nor impliedly authorized by the contract of bailment, even though the injury was the result of accident, and not of negligence. Palmer v. Mayo, 80 Conn. 353, 68 Atl. 369, 15 L. R. A. (N. S.) 428, 125 Am. St. Rep. 123, 12 Ann. Cas. 691.

81 Nanson v. Jacob, 93 Mo. 331, 6 S. W. 246, 3 Am. St. Rep. 531; PARKER v. LOMBARD, 100 Mass. 405, Dobie Cas. Bailments and Carriers, 31. So, in Strickland v. Barrett, 20 Pick. (Mass.) 415, B., who was a mortgagor in possession of certain goods, conspired with H. to remove them out of the reach of the mortgagee, and employed the defendant to assist in removing them; and it was held that defendant was not liable in trover, unless he knew of the intent to deprive the plaintiff of his property. And where one received a gun as a pledge from a person in possession of it, and restored it to him before any demand by the owner, this was not found to be a conversion. Leonard v. Tidd, 3 Metc. (Mass.) 6. See, also, Loring v. Mulcahy, 3 Allen (Mass.) 575. Nelson v. Iverson, 17 Ala. 216. And see Brown v. Thayer, 12 Gray (Mass.) 1.

goods to be redelivered are the identical goods delivered to the bailee, either in the same or in an altered form, together with the profits or increase of such goods, though, in the case of stock certificates, mere evidences of certain rights in the corporation, any one of which is as good as another similar one, the identical certificate need not be returned.82

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The bailee is an insurer as to his delivery to the right person. In other words, he is absolutely responsible for a delivery to the wrong person, regardless of the question of the bailee's good faith or negligence in making the delivery. He therefore acts at his own peril and is liable for any mistake that he may make. Thus he will be responsible for delivery on a forged order, however perfect the forgery, and whatever precautions he may have taken to discover it. A bailee, accepting goods to be delivered to a third person on the happening of a certain event, must at his own peril decide whether the event has happened. Of course, the bailee is not liable when he delivers the goods to the right person, though the delivery is made on insufficient or even false evidence. As we have just seen, the bailee is justified in following the

84

85

82 Atkins v. Gamble, 42 Cal. 86, 10 Am. Rep. 282.

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83 ESMAY v. FANNING, 9 Barb. (N. Y.) 176, Dobie Cas. Bailments and Carriers, 36; Wear v. Gleason, 52 Ark. 364, 12 S. W. 756, 20 Am. St. Rep. 186; Nelson v. King, 25 Tex. 655; Ganley v. Troy City Nat. Bank, 98 N. Y. 487; Bank of Oswego v. Doyle, 91 N. Y. 32, 42, 43 Am. Rep. 634; Willard v. Bridge, 4 Barb. (N. Y.) 361; Graves v. Smith, 14 Wis. 5, 80 Am. Dec. 762; Jenkins v. Bacon, 111 Mass. 373, 15 Am. Rep. 33; Dufour v. Mepham, 31 Mo. 577; Jeffersonville R. Co. v. White, 6 Bush. (Ky.) 251; Alabama & T. R. R. Co. v. Kidd, 35 Ala. 209. But see Lancaster County Nat. Bank v. Smith, 62 Pa. 47. In some jurisdictions the question of negligence has been considered in the matter of delivery. See Manhattan Bank v. Walker, 130 U. S. 267, 9 Sup. Ct. 519, 32 L. Ed. 959; Lancaster County Nat. Bank v. Smith, 62 Pa. 47; Heugh v. London & N. W. Ry. Co., L. R. 5 Exch. 51. When property in the custody of a bailee for hire is demanded by a third person under color of process, it is the bailee's duty to ascertain whether the process is such as required him to surrender, and, if the proceeding is illegal or void, he must refuse to surrender the property and adopt such means for reclaiming it, if taken, as a prudent man would had his own been taken under a claim of right without legal process. Morris Storage & Transfer Co. v. Wilkes, 1

Ga. App. 751, 58 S. E. 232.

84 Kowing v. Manly, 49 N. Y. 192, 10 Am. Rep. 346; Lichtenhein v. Boston & P. R. Co., 11 Cush. (Mass.) 70; Hall v. Boston & W. R. Corp., 14 Allen (Mass.) 439, 92 Am. Dec. 783; Forsythe v. Walker, 9 Pa. 148; Collins v. Burns, 63 N. Y. 1; Dufour v. Mepham, 31 Mo. 577; McGinn v. Butler, 31 Iowa, 160; Stephenson v. Price, 30 Tex. 715; Willard v. Bridge, 4 Barb. (N. Y.) 361; Ala. bama & T. R. R. Co. v. Kidd, 35 Ala. 209.

85 Carle v. Bearce, 33 Me. 337, 340; Chase v. Gates, 33 Me. 363; Trefftz v. Canelli, L. R. 4 P. C. 277, 282; Lafarge v. Morgan, 11 Mart. (La.) 462.

86 Chattahoochee Nat. Bank v. Schley, 58 Ga. 369, 374.

instructions of his bailor and redelivering the goods to the bailor, when no adverse claim is brought to his attention. Upon notice of such adverse claim by the third party, the legality of this claim must be determined by the bailee on his own responsibility. He cannot disregard the claim, and if he does, and redelivers to the bailor, the bailee is responsible to the adverse claimant if his claim prove a just one. Again, if the bailee yield to the claim by delivering the goods to the third person, he thereby becomes liable to the bailor, should such claim turn out to have no foundation in law.88

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When such adverse claim is made, the bailee, unless he is perfectly sure of its validity, should refuse to deliver the goods to the third party and should call in his bailor to defend against such adverse claim.89 If there be privity between the bailor and third person, the safest course for the bailee to pursue is to file a bill of interpleader in a court of equity, asking that the bailor and third person be brought into court and have the question of the ownership of the goods decided." But, as we have seen, when the bailee himself undertakes to pass upon the merits of the opposing claims, he is absolutely responsible for a wrong decision. The bailee incurs no liability by surrendering the goods under valid process of law or the decree of a court of competent jurisdiction; 1 but,

87 Wilson v. Anderton, 1 Barn. & Adol. (Eng.) 450.

88 Calhoun v. Thompson, 56 Ala. 166, 28 Am. Rep. 754; POWELL v. ROBINSON, 76 Ala. 423, Dobie Cas. Bailments and Carriers, 33.

89 Schouler, Bailm. (2d Ed.) § 60; Story, Bailm. § 111; Bliven v. Hudson River R. Co., 35 Barb. (N. Y.) 188; POWELL v. ROBINSON, 76 Ala. 423, Dobie Cas. Bailments and Carriers, 33.

90 Bechtel v. Sheafer, 117 Pa. 555, 11 Atl. 889; Ball v. Liney, 48 N. Y. 6, 13, 8 Am. Rep. 511; Banfield v. Haeger, 7 Abb. N. C. (N. Y.) 318. See, also, De Zouche v. Garrison, 140 Pa. 430, 21 Atl. 450; Hatfield v. McWhorter, 40 Ga. 269; note 91 Am. St. Rep. 608. But when no privity exists, the bailee cannot, in the absence of statute, compel them to interplead. Marvin v. Ellwood, 11 Paige (N. Y.) 365; First Nat. Bank of Morristown v. Bininger, 26 N. J. Eq. 345; Bartlett v. His Imperial Majesty, The Sultan (C. C.) 23 Fed. 257; Bechtel v. Sheafer, 117 Pa. 555, 11 Atl. 889.

91 Stiles v. Davis, 1 Black (U. S.) 101, 17 L. Ed. 33; French v. Star Union Transp. Co., 134 Mass. 288; Britton v. Aymar, 23 La. Ann. 63; Ohio & M. Ry. Co. v. Yohe, 51 Ind. 181, 19 Am. Rep. 727; Bliven v. Hudson River R. Co., 36 N. Y. 403; Robinson v. Memphis & C. R. Co. (C. C.) 16 Fed. 57; Burton v. Wilkinson, 18 Vt. 186, 46 Am. Dec. 145. When property is taken from a bailee's custody by valid legal process, the bailee must notify the bailor of the taking within a reasonable time, in order to protect himself from being charged with the conversion of the property. Medina Gas & Electric Light Co. v. Buffalo Loan, Trust & Safe Deposit Co., 119 App. Div. 245, 104 N. Y. Supp. 625; MacDonnell v. Buffalo Loan, Trust & Safe Deposit Co., 193 N. Y. 92, 85 N. E. 801.

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