Ewing v. Shaw

• Decision Date: 15 February 1888
• Citation: 83 Ala. 333,3 So. 692
• Parties: EWING ET AL. v. SHAW ET AL.
• Court: Alabama Supreme Court

3 So. 692

83 Ala. 333

EWING ET AL. v. SHAW ET AL.

Supreme Court of Alabama

February 15, 1888

Appeal from circuit court, Coosa county; JAMES W. LAPSLEY, Judge.

This was an action brought by Ewing & Gaines, a mercantile firm against J. M. Shaw & Co., a firm keeping a livery stable and doing a livery business, for the recovery of damages the plaintiffs had suffered by the loss of a trunk, samples, and sample cases, which were in the possession of their traveling salesman and agent, J. Q. Bailey, and were being carried by the defendants' wagon, under a contract. The defendants pleaded the general issue, and specially pleaded recoupment for damages they had suffered by the violation of the contract entered into between them and the plaintiffs' agent, said J. Q. Bailey, and also on account of the negligence the plaintiffs' agent had been guilty of, and that the loss suffered by the plaintiffs was the result of their agent compelling the driver of the defendants to cross a swollen stream, and that by such compulsion the defendants were very greatly injured and damaged. The plaintiffs demurred to this plea of recoupment on the ground that "said plea is double, uncertain, and insufficient, and fails to answer the complaint." The court overruled the demurrer, and the plaintiffs excepted. Issue was joined on the several pleas as above stated. The testimony, as shown by the bill of exceptions, tends to prove that the said Bailey while acting as the agent of the plaintiffs in the capacity of their traveling salesman, hired a team from the defendants for a stipulated price; that the said Bailey was not to use the said team on Sunday, and that accordingly he was not charged for the use of the team on Sundays; that while said Bailey, as the agent of the plaintiffs, was in the use of the said team, and while they (the said Bailey and the man the defendants had sent with him to drive the horses) were driving along, they came to a stream which was very much swollen; and that, after the said Bailey had asked some one whom he saw near the stream if the stream was swimming, and being told that it was, he ordered the driver to drive into and across the stream nevertheless; that on driving into the stream, the trunk, samples, and sample cases, and other things the said Bailey had with him were submerged in the water, and some lost and others very much damaged; that one of the defendants' horses that was hitched to the wagon was drowned in the stream, and the harness and the wagon were very much damaged. This being in substance all the evidence was produced on the trial, the defendants asked the court to give the following charge, which was in writing: "If the wagon, team, and driver, by the contract, were under the control of Bailey, the agent of plaintiffs, and it was by his direction that the...