Federal Compress & Warehouse Co. v. Swilley, 43180

• Decision Date: 01 February 1965
• Docket Number: No. 43180,43180
• Citation: 171 So.2d 333,252 Miss. 103
• Parties: FEDERAL COMPRESS & WAREHOUSE COMPANY and J. H. Brent v. W. W. SWILLEY and W. M. Swilley, Jr., d/b/a Swilley Gin Company.
• Court: Mississippi Supreme Court

Page 333

171 So.2d 333

252 Miss. 103

FEDERAL COMPRESS & WAREHOUSE COMPANY and J. H. Brent v. W. W. SWILLEY and W. M. Swilley, Jr., d/b/a Swilley Gin Company.

No. 43180.

Supreme Court of Mississippi.

Feb. 1, 1965.

Watkins & Eager, William E. Suddath, Jr., Young & Young, Pat H. Scanlon, Jackson, for appellants.

Ernest Shelton, Crisler, Crisler & Bowling, Jackson, McIntyre & McIntyre, Brandon, for appellees.

GILLESPIE, Justice.

Swilley Gin Company obtained a joint and several judgment against Federal Compress & Warehouse Company and J. H. Brent for damages resulting from the burning of 105 bales of cotton. The defendants filed separate appeals.

W. W. Swilley and his brother, W. M. Swilley, doing business as Swilley Gin Company, and hereinafter referred to as the Gin, operate a cotton gin in Rankin County. Federal Compress & Warehouse Company, hereinafter referred to as Compress, is a corporation engaged in the compressing and storage of cotton in Hinds County. J. H. Brent, a resident of Hinds County, is an electrical contractor and is hereinafter referred to as Brent.

The Gin had sent all of its ginned cotton, with only one exception, to Compress for a period of thirty-five years. The business relationship between Compress and Gin was good, and both desired that it remain so. Gin loaded the cotton on Gin's trucks and delivered it to the Compress as fast as a truckload, twenty-eight to thirty bales, could be ginned from raw cotton and loaded for delivery. An electric hoist was used in lifting the bales of cotton from the gin platform and loading them on the trucks.

Brent had been employed by Compress as an electrician to repair or alter the electric system at its Jackson plant from time to time prior to October 17, 1961. Brent was paid by Compress on a labor and material basis upon the completion of each particular job. He was never an employee of Compress, but an independent contractor.

Brent was never employed by Gin in any manner on this or any other occasion. His acquaintance with the Swilleys was limited to two occasions, one when Brent was shown the location of the electric hoist, and the other being October 17, 1961, the date of the fire, when Brent installed a hoist owned by Brent and told the Swilleys that they could use it.

Several days prior to October 17, 1961, Gin began having trouble with the electric hoist. After an unsuccessful attempt by Gin to have the hoist repaired, one of the Swilleys contacted Compress with reference to the difficulties with the hoist, and Compress, through its manager, Gardner, agreed to send another hoist to Gin. This hoist was conveyed to the gin and installed by Gardner. It worked satisfactorily for several days and then it became inoperable. Gardner was notified by Gin of the difficulty with the hoist Compress had installed; whereupon Compress engaged Brent to repair either the Gin hoist or the Compress hoist so that the cotton could be loaded and moved to Compress. Brent went to the gin and repaired one of the hoists. The next day Gin again had difficulties with the hoist and called Gardner with reference thereto, and Gardner again contacted Brent. Brent advised Gardner that he was aware of the situation at the gin and suggested that he had a hoist which he would lend Gin until the other hoists could be repaired. He was then directed by Gardner to 'Please take it on out there and get it running.' Brent installed this hoist on the morning of October 17, 1961, tested it by lifting two bales of cotton, informed Gin that it was ready for use, and departed. The proof showed without dispute that several electric wires, which ran from the rear of the gin to an outside power pole, were near the loading boom and the electric hoist which was suspended therefrom. The testimony is in dispute whether Brent warned Gin with reference to these electric wires.

Within fifteen minutes after Brent's departure and after three or four bales of cotton had been loaded upon a truck, and while another bale was being lifted by the hoist, sparks began to come from the hoist, setting the cotton on fire, resulting in the burning of 105 bales.

After the fire, the hoist was examined by an electrician while still in place at the gin. During this examination when the hoist was put in operation, the whole thing blazed up. Thereafter the electrician inspected the capacitor, a part of the electric motor, and, according to his testimony, the insulation on one of the wires was worn out and 'the insulation gave way,' and a small hole was burned at the bottom of the capacitor. Based on the testimony of Lawrence, the electrician, the jury could find that the shorting of the wire with defective insulation caused the sparks to come from the motor. Lawrence further testified that the proper way to determine whether electrical equipment of this sort is in good operating condition would be to carry it to a competent electrician for inspection and repair. He also testified that the condition of the motor could have been determined by removing two screws, taking off the cap of the capacitor, and looking into it.

The day following the fire the hoist was examined by an electrician, Flannigan, along with Brent. This examination revealed, according to Flannigan and Brent, the hoist to be in good operating condition although there was a small hole in the bottom of the capacitor which appeared to them to have been burned by an electrical short or arc. They placed a charge of 1500 volts through the wiring of the hoist to determine if its insulation was proper. The wiring within the hoist withstood this excessive charge of electricity and revealed no defect in the insulation of the internal wires. A consulting electrical engineer testified that in his opinion the hole at the bottom of the capacitor was burned from the outside to the inside as the result of the capacitor coming in contact with an uninsulated electric wire, thus causing a short or arc which burned through the hull of the capacitor, the tendency of his testimony being to prove that the hoist made contact with one of the wires leading from the gin to the power pole.

The electric hoist was given to Brent some two months prior to its installation at the gin. Upon receiving this used hoist, Brent took it to Flannigan Electric Motor Shop in the City of Jackson with instructions to put it in good running condition. The hoist was inspected, repaired, and, according to Flannigan, put in good running condition. The hull of the capacitor was not removed as it was not necessary to do so in order to repair the hoist and put it in proper condition, according to the testimony of Flannigan. After the repair Flannigan tested the hoist to establish its proper functioning by installing it on an 'A-frame' and lifting a ton or two with it. It was found to be in good condition, and Flannigan returned it to Brent, who used the hoist once before installing it at the gin, and on that occasion it operated satisfactorily

The electrical wires near the hoist running from the gin to the power pole were examined after the fire and the insulation was in sound and unbroken condition. This is undisputed.

The evidence is in conflict as to whether a reasonable inspection of the hoist was made before the fire. It conflicts also as to whether the fire was started by sparks originating from a short within the hoist or from the outside thereof.

Gin brought suit for damages as a result of the burning of the cotton, and charged that the defendants, as suppliers of the hoist chattel, 'knew, or by the exercise of reasonable care, should have known, that the said electric motor installed by the defendants was defective, dangerous and hazardous and was calculated to cause fire around and about the said cotton.'

In separate briefs Brent and Compress contend that they were entitled to the peremptory charge requiring the jury to find for them.

We hold that the relationship between Compress and Gin was that of bailor and bailee for the mutual benefit of the parties. Compress contends that it was not a bailor, but if so, a gratuitous one.

Compress did not own the hoist and never had physical possession of it, however, it had undertaken to see that Gin be provided with a hoist, first by repairing the one owned by Gin, then providing one owned by Compress, and when both failed to work, Compress undertook to have the one owned by Brent installed for use by Gin while Brent repaired the one owned by Gin. Compress assumed dominion and control over the Brent hoist by directing Brent to install it for the purpose of use by Gin. The relationship of bailor and bailee does not depend upon who owned the bailed chattel. It may be leased to the supplier or it may be borrowed by him. Miss. Central R. Co. v. Lott, 118 Miss. 816, 80 So. 277 (1918); II Restatement, Torts Sec. 392(c) (1934).

It cannot be successfully contended that Compress was a gratuitous bailor. It is true that it was receiving no rent for the use of the Brent hoist, but it was interested in maintaining the satisfactory business relations that had existed between it and Gin for over thirty years to the end that Gin would continue sending its cotton to Compress. And Compress had a more immediate and direct financial interest in supplying the Brent hoist to Gin in that it was to be used in loading cotton on trucks for direct shipment to Compress, for compressing and storage.

We also hold that the relationship between Brent and Gin was that of bailor and bailee for their mutual benefit. Compress had employed Brent, an independent contractor, to repair the hoist owned by Gin. Brent was to be paid by Compress on a time and material basis. In carrying out his contract with Compress, Brent realized the situation at the gin--the fact that the cotton was piling up without any hoist to load it so it could be moved from the gin to Compress--and conceived the idea of lending Gin a hoist he owned. He called Gardner, Compress manager,...