Bertig v. Norman

• Decision Date: 06 November 1911
• Citation: 141 S.W. 201,101 Ark. 75
• Parties: BERTIG v. NORMAN
• Court: Arkansas Supreme Court

141 S.W. 201

101 Ark. 75

BERTIG v. NORMAN

Supreme Court of Arkansas

November 6, 1911

Appeal from Greene Circuit Court; Frank Smith, Judge; reversed.

Judgment reversed and cause remanded for new trial.

Block & Kirsch, for appellants.

1. Though the complaint sounded in tort, yet, by his election before going to the jury, in terms "that his cause of action is one of bailment," plaintiff in effect elected to recover on an implied assumpsit. The character of the action elected is to be determined by the object sought to be attained and not by what it is called. 53 Ark. 468; 36 Ark 331; 73 Ark. 183; 74 Ark. 93.

Where a party waives a tort and sues in contract, he must show that the property has been disposed of for value. 11 Ark. 270; 17 Ark. 599; 31 Ark. 155; 76 Am. Dec. 318; 17 Id. 238 and note; 22 Mass. 285; 5 A. 491; 22 Am. Rep. 239. This being true, and the evidence conclusively showing that appellants did not dispose of the cotton and received nothing of value for it, the verdict must fall.

2. The seventh instruction is erroneous. It improperly classes appellants as bailees for hire and exacts a higher degree of care of them than is warranted by the evidence. Only in case of gross negligence could appellants be held liable. 11 Ark 189; 23 Ark. 61; 61 Ark. 302. It further errs in placing the burden on appellants of explaining the loss of the cotton. 68 Ark. 284.

Huddleston & Taylor, for appellee.

1. Under each of the complaints, the action is one of bailment, and, in view of the allegations of the complaints and appellee's election in court to treat it as an action of bailment, appellants are not warranted in concluding that it is an action either of implied or special assumpsit. However, where a contractual relation exists between the parties, such as bailee and bailor, a tort arising out of a breach of duty imposed by the relation may be waived and special assumpsit maintained. 4 Cyc. 331; 17 So. 536; 9 Ark. 85; 38 P. 457; 42 N.W. 384; 1 N.J.L. 344; 39 N.Y. 297; 25 Am. Dec. 596; 27 A. 38; 22 S.E. 734.

2. Even if appellants were gratuitous bailees, the law imposes upon them the duty to account in some manner for the cotton. 74 Ark. 282; 67 Ark. 284; 28 L. R. A. 716; 5 Cyc. 175. Where the property is lost or stolen, it must appear that it was not due to the fault or negligence of the bailee; otherwise he is not excused. 100 Am. Dec. 298; 5 Cyc. 186, 187.

FRAUENTHAL, J. KIRBY, J., dissents.

OPINION

FRAUENTHAL, J.

This was an action instituted by Joseph Norman, the plaintiff below, to recover the value of a bale of cotton which he owned. It was originally instituted in a justice of the peace court against Bertig Brothers, the Paragould Grocer Company and D. D. Hodges as defendants. The cause of action was in that court based upon allegations that the plaintiff had delivered or caused to be delivered to the defendants the bale of cotton, and that it was sold or shipped by them, and that they had refused to pay therefor. The case was appealed to the circuit court, and in that court the complaint was amended, and in substance alleged that the cotton was delivered to Bertig Brothers, and that, by the negligence of all the defendants in failing to properly care for same, the cotton was lost. It was also alleged that defendants had converted the cotton to their own use and benefit. Upon the trial of the case in the circuit court, and after the introduction of all the testimony, the defendants "moved the court to require plaintiff to state whether he sued upon account, in bailment, or conversion. Thereupon plaintiff stated that the action was founded upon bailment."

It appears from the testimony that in April, 1907, the plaintiff hauled a lot of seed cotton to the Farmers' Gin Company, a business corporation located at Paragould, in order to have the same ginned and baled, which was done in a short time thereafter. The plaintiff resided in the county, some distance from the gin, and he claimed that he gave no directions to the ginner as to the disposition of this bale of cotton at the time he delivered the seed cotton. After ginning the cotton, the Gin Company sent the bale by its driver to a public platform situated at or near the depot in that city. At this platform cotton was weighed by a number of mercantile companies located in said city who were engaged in buying and shipping cotton. Two of these mercantile companies--Bertig Brothers and the Joseph Mercantile Company--had weighers at this cotton platform who weighed and placed tags upon the bales with consecutive numbers thereon. The bale in question was by the Gin Company marked "J O N," and by its driver hauled to the public platform, where the weigher of Bertig Brothers was at work. This weigher weighed the cotton and placed thereon a tag of Bertig Brothers marked "B-2977," with notation thereon "to hold." The bookkeeper of Bertig Brothers was notified thereof, and he entered the bale on the cotton book of the company, with this number, the name of the plaintiff as owner, and the notation that it was not to be shipped. It appears that the plaintiff never saw Bertig Brothers relative to this cotton, and gave no direction to them to take possession or otherwise to control or have custody thereof. The driver of the Gin Company hauled the bale at the direction of the manager of the gin to the public platform and there unloaded it.

It appears that a number of bales owned by various merchants and others was upon this public platform, and that, according to the custom, when cotton which was not sold to any of these merchants was placed upon the platform, the weigher would weigh and tag the same for the convenience of the owner and also of these mercantile companies, so that said bale could be identified from the other bales upon the platform. The notation "to hold" was placed thereon to indicate that it was not owned by any of the mercantile companies and should not be shipped out. The number of the bale and the name of the owner was placed upon the cotton books of Bertig Brothers for convenience only. The notation was made on the books showing that it was not bought by Bertig Brothers, and that they had no interest therein; and if subsequently they did purchase it, the entry of the number of the bale would appear in consecutive order upon their books.

It appears that, about a week or so after he had delivered the cotton to the Gin Company, the plaintiff made an arrangement with the Paragould Grocer Company to take the cotton from the gin and ship same, and, after its sale, to apply the proceeds upon certain indebtedness due by the plaintiff. The bale was hauled to the public platform without any knowledge or direction of plaintiff or of the Paragould Grocer Company. The bale remained on the platform for about two weeks, when some one whom the weigher did not personally know, but whom the testimony tended to prove was the shipping clerk of the Paragould Grocer Company, notified the weigher that the cotton belonged to it or was in the charge of that company, and thereupon the weigher notified Bertig Brothers' bookkeeper of this, and he directed the weigher to take the tag from the bale, which was immediately done. The bale was then left upon the public platform, just as it was when hauled there by the driver of the Gin Company. It remained on the platform about three weeks thereafter, when it disappeared.

There was some testimony tending to show that about this time an agent of the Paragould Grocer Company presented to the agent of the railroad company at that place a bill of lading for this bale of cotton for the purpose of shipping it. The depot agent testified that, before signing same, he went to the platform to check the bale, and, not finding it, did not issue the bill of lading therefor. No inquiry or investigation as to this bale seems to have been made by any one from this time until about one year later, when the plaintiff, seeking settlement therefor from the Paragould Grocer Company, learned that it had not shipped or sold it. During all this time the plaintiff understood that the Paragould Grocer Company had obtained the cotton under his direction, and had sold same for him.

The testimony on behalf of Bertig Brothers proved that the bale of cotton was not taken, shipped or sold by them. Upon the trial of the case, a verdict was returned in favor of the plaintiff and against Bertig Brothers only, and they alone have appealed from the judgment entered upon this verdict to his court.

It is urged by counsel for Bertig Brothers that the action as originally brought was one sounding in tort for the conversion of the property, and that the complaint could not be amended so as to base the action upon a bailment. But we are of the opinion that the allegations of the complaint in the justice of the peace court, and as it was amended in the circuit court, were sufficient to make the action one of assumpsit. The action of assumpsit is one for the recovery of damages for the nonperformance of a simple contract. Such contract may be expressed or implied, and the action is based upon the breach thereof, and is therefore ex contractu. 2 Enc. Pl. & Prac. 988.

Giving to the pleading that liberal construction accorded by our practice, the complaint as originally filed alleged that the defendants had obtained and converted the bale of cotton, and were liable to plaintiff upon an implied promise to pay for the value thereof thus received by them. At the trial, the plaintiff, when required to elect or specifically name his cause of action, in effect based it upon the allegations that a contract of bailment existed between the parties, and that the defendants had breached that contract by negligently failing to care for the property intrusted to them. Under...