Weller & Co. v. Camp

• Decision Date: 12 May 1910
• Court: Alabama Supreme Court
• Parties: WELLER & CO. v. CAMP.

52 So. 929

169 Ala. 275

WELLER & CO. v. CAMP.

Supreme Court of Alabama

May 12, 1910

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by J. T. Camp against Weller & Co. From a judgment for plaintiff, defendants appeal. Reversed.

The first count claims damages for that, on the 11th day of May 1907, at Birmingham, Ala., the plaintiff, at the special instance and request of defendants, let to hire and delivered to said defendants a certain horse, the property of plaintiff, of great value, to wit, of the value of $750, to be had and used by the said defendants for a certain time in that behalf agreed upon by and between said plaintiff and said defendants, to wit, from the 11th day of May, 1907, to the 12th day of May, 1907, and to be redelivered by the said defendants to the said plaintiff after that time, and that said defendants then and there had and received the said horse for the purpose aforesaid, yet the said defendants, not regarding their duty in that behalf afterwards, to wit, on the day and date aforesaid, by themselves, or their servants in that behalf, conducted themselves so carelessly negligently, and improperly in and about the use of said horse that by and through the mere negligence of said defendants and their servants the said horse was then and there so injured, by the falling upon it by a piece of metal or machinery being hauled by said defendants that it shortly thereafter died and was wholly lost to the plaintiff. Amended count A is in trover. Amended count B states substantially the same facts, with the additional allegation that plaintiff hired to the defendants for an agreed consideration two teams, meaning two outfits consisting each of one driver, one wagon, and two horses, with the express agreement that the defendants should be, and by the act of hiring did become absolutely responsible for any injuries which might be sustained by said teams while under hire to the defendants.

W. T Hill and James A. Mitchell, for appellants.

London & Fitts, for appellee.

SAYRE J.

In Posey v. Hair, 12 Ala. 567, it was said that the certainty required in declaration, or plea, is such a statement of the facts constituting the cause of action, or ground of defense, as will enable them to be understood by the party who is to answer them, the jury who are to ascertain their truth, and the court which is to give judgment. The later statute (Code, § 5321), which enjoins brevity as far as consistent with perspicuity, and the presentation of facts in an intelligible form so that a material issue in law or fact can be taken thereon by the adverse party, has not impaired the substance of the requirement stated in the early cases, though it may be admitted that in some late cases the limit has been reached in permitting the allegation of mere conclusions. No fault is to be found with the complaint in question. It is meritorious as a clear statement of plaintiff's case without the incumbrance of unnecessary detail, and, as to substance, meets every requirement of early case or later statute.

There is no dispute but that the plaintiff hired to defendants two teams, each consisting of a wagon and two horses, to be used by the defendants in hauling heavy castings between the Lynn Iron Works and defendants' place of business in the city of Birmingham. Defendants were to load and unload the wagons. Plaintiff furnished drivers for his teams. Defendants were to pay for the teams by the hour. At the same time defendants had teams of their own engaged in the same business. All the teams were driven along the customary route between the points indicated. At a point where the paving had been torn up one of defendants' wagons got into a hole or ditch from which the team was unable to move it. Thereupon the driver of one of plaintiff's teams, who had just had a similar experience at the same place, unhitched his team and took it back to help defendants' team; and because his team would not work in the lead, hitched them to defendants' wagon with defendants' team in the lead. The driver did this of his own initiative, but it is clear that one of the defendants approved and acquiesced. In the effort to extricate the wagon from the hole or ditch the casting fell from the wagon upon plaintiff's horse killing it. There was dispute as to whether the accident resulted from the negligent manner in which, according to plaintiff's contention, the casting had been placed upon the wagon, and whether negligence of the driver in the management of his team did not cause or proximately contribute to the result. These matters of dispute became thereby questions for the decision of the jury, and appellee contends that upon the facts and tendencies detailed it was a question for the jury whether there had been a conversion of plaintiff's team as alleged in count A of the complaint. And so the court below ruled. But we are of the contrary opinion. Where the owner of a horse lets him to hire for a certain purpose, any material departure from the contemplated use amounts to a conversion for which the bailee will be liable in trover if the horse is injured or destroyed while being so used. 2...