Batesville Gin Co. v. Whitten

• Decision Date: 20 December 1909
• Docket Number: 14,225
• Citation: 96 Miss. 210,50 So. 695
• Court: Mississippi Supreme Court
• Parties: BATESVILLE GIN COMPANY v. WILLIAM W. WHITTEN

50 So. 695

96 Miss. 210

BATESVILLE GIN COMPANY v. WILLIAM W. WHITTEN

No. 14,225

Supreme Court of Mississippi

December 20, 1909

FROM the circuit court of, second district, Panola county, HON WILLIAM A. ROANE, Judge.

Whitten appellee, was plaintiff in the court below; the gin company appellant, was defendant there. From a judgment in plaintiff's favor the defendant appealed to the supreme court.

Whitten the plaintiff, sent seed cotton in the afternoon to the gin company, defendant, to be ginned. It was during the same afternoon ginned, baled and tagged by the company and placed in the yard for return to the owner, and the agent of the plaintiff, who brought the cotton to the gin, not having left the premises and his wagon being still there, was notified to receive and take the bale away. Plaintiff's agent departed, leaving the cotton where it had been placed for his reception of it. He returned the next day, but the cotton could not be found. Other facts are stated in the opinion of the court.

Reversed and remanded.

P. H. Lowrey, for appellant.

There are three well recognized kinds of bailment, (1) where the bailment is for the sole benefit of the bailee; (2), where the bailment is for the mutual benefit of the parties; and (3), where the bailment is for the sole benefit of the bailor.

There of course can be no contention tat this case fails in the first class. While the cotton was being held to be ginned it falls in the second class. 3 Am. & Eng. Ency. of Law (2d ed.), 742. Supposing this relation continued, the appellant was liable for only ordinary care. 5 Cyc. 184; 3 Am. & Eng. Ency. of Law (2d ed.), 746.

In this case the proof so conclusively shows that there was no negligence on the part of the appellant and that it exercised that degree of care required, the peremptory instruction should have been given for the appellant, and the court erred in refusing the instruction. There being no dispute about the facts, it was a matter for a peremptory instruction. The court not only refused a peremptory instruction but also refused an instruction asked by the appellant that the appellant was liable for the exercise of only ordinary care. We fail to see any reason for the refusal of this instruction. It is in accord with all the authority we have cited or have been able to find. Whether or not the appellant was entitled to a peremptory instruction, the refusal of this instruction was a serious mistake against appellant and entitles it to a new trial, where the question can be submitted on proper instructions.

The court instructed the jury for the appellant that if the cotton was stolen the burden was on the plaintiff to show that the theft was through the fault or negligence of the defendant, which was clearly correct and might have gone further. 28 Am. & Eng. Ency. of Law (1st ed.), 645; Claflin v. Myers, 75 N.Y. 260; Kelton v. Taylor (Tenn.), 11 Lea, 264. These instructions, however, do not embrace the principles announced in the refused instructions. The jury had no guide in any instruction given for either party as to what degree of care was required of defendant.

The case of the appellant is much stronger, in that after the cotton was ginned and baled, the appellant was at most a bailee for the sole benefit of the bailor. Nothing was paid for the services, the whole pay being for ginning and baling the cotton and the whole amount was due at the time the cotton was baled and rolled off the platform. This was peculiarly the case here where the cotton was carried to appellant's gin by the appellee with full knowledge that it would not be responsible for the cotton after it was baled. This being the case it was a part of the contract and the appellee is bound by it. 5 Cyc. 175, 176. Bailment could be terminated in this way. 5 Cyc. 204; or could by this notice be changed from a bailment for mutual benefit, to a bailment for the sole benefit of the bailor. 5 Cyc. 185, end of note 27; Burrows v. Cushway, 37 Mich. 481; Carnes v. Nichols, 10 Gray (Mass.), 369; McKay v. Hamlin, 40 Miss. 473; Miller v. Peoples, 60 Miss. 819; Caldwell v. Hall, 60 Miss. 330; Meridian Fair v. Railroad Co., 70 Miss. 808; Archer v. Sinclair, 49 Miss. 343; Cowles v. Pointer, 26 Miss. 253.

Pearson, Eckles & Carothers, for appellee.

The assertion that the cotton was stolen, or must have been stolen, will not avail. The allegation must be proved by a preponderance of evidence. Hadley v. Orchard, 77 Mo.App. 141; Davis v. Tribune JP Co., 70 Minn. 95, 72 N.W. 808; Pregent v. Mills, 51 Wash. 187, 98 P. 328; Dixon v. McDonnell, 92 Mo.App. 479; Shropshire v. Sidebottom, 30 Mont. 406, 76 P. 941; SulphoSaline Bath Co. v. Allen, 66 Neb. 295, 92 N.W. 354; Manson v. Pullman, etc., 60 A. 1120; 3 Decennial Digest, Bailment, sec. 31; Haas v. Taylor, 80 Ala. 459; Claflin v. Meyer, 31 Am. Rep. 467; Hackney v. Perry (Ala.), 44 So. 1029; Cowles v. Pointer, 26 Miss. 253.

The record here, so far as the evidence is concerned, is in all material particulars just the same as it was in the former appeal.

The opinion of this court in reversing the case before stated that, "The facts of this case did not warrant the giving of a peremptory instruction for plaintiff," and the case was remanded. This was tantamount to saying that it should have been submitted to the jury under proper instructions.

OPINION

MAYES, J.

This case has been before the court twice. The first report of the case is on page 616 of 48 Southern. In the report of the first case it is shown that the...