Greenville Insulating Board Corporation v. Mcmurray

• Decision Date: 23 January 1933
• Docket Number: 30338
• Citation: 145 So. 730,164 Miss. 809
• Court: Mississippi Supreme Court
• Parties: GREENVILLE INSULATING BOARD CORPORATION v. MCMURRAY

145 So. 730

164 Miss. 809

GREENVILLE INSULATING BOARD CORPORATION v. MCMURRAY

No. 30338

Supreme Court of Mississippi

January 23, 1933

Division A

Suggestion Of Error Overruled February 20, 1933.

APPEAL from the circuit court of Washington county, HON. S. F DAVIS, Judge.

Suit by C. H. McMurray against the Greenville Insulating Board Corporation. Judgment for the plaintiff, and the defendant appeals. Reversed, and the cause remanded.

Reversed and remanded.

Percy, Strauss & Kellner, of Greenville, for appellant.

As lessee of the barge under a lease providing for its return in the same condition as received, the defendant is liable for its destruction only in the event the evidence proves the defendant or some one for whom the defendant was responsible, guilty of negligence.

Meridian Fair Assn. v. Railway Company, 70 Miss. 808, 12 So. 555; Kohlsaat v. Parkersburg & Marietta Sand Co., 266 F. 283, C. C. A. 4th Cir; Schoonmaker-Conners Company v. Lambert Transportation Company, 268 F. 102 C. C. A. 2 Cir.; The Elfrida, 14 F. 237 D. C. E. Div. N. Y.; Ann. 11 A.L.R., p. 690.

Whether or not the defendant, or those persons for whose actions it was responsible, were guilty of negligence, is a question of fact which should have been submitted to the jury.

21 A. & E. Ency., p. 499; 45 C. J. 1279; Bell v. Southern Ry. Co., 30 So. 821; Laurel Mercantile Co. v. Mobile & O. R. Co., 87 Miss. 675, 40 So. 259; Gilchirst Fordney Company v. Price, 112 Miss. 20, 72 So. 836; Dampf v. Yazoo Ry. Co., 95 Miss. 85, 48 So. 612; S. H. Kress & Co. v. Marklins, 117 Miss. 37, 77 So. 858; Leeke v. Gulf & S. I. R. R. Co., 91 Miss. 68, 46 So. 68; Dennis v. New Orleans & N.E. R. Co., 32 So. 914; Illinois Central Ry Co. v. Turner, 71. Miss. 402, 14 So. 450; Alabama, etc., Ry. Co. v. Groome, 97 Miss. 201, 52 So. 703; Harrison v. Southern Railway Company, 93 Miss. 40, 46 So. 408.

If any inference may be drawn from the evidence that the defendant was not negligent as charged by the court's peremptory instruction, then the question was for the jury.

Nesbitt v. City of Greenville, 69 Miss. 22, 10 So. 452; Southern Ry. Company v. Floyd, 99 Miss. 519, 55 So. 287; Lowe v. Mobile & O. R. Co., 149 Miss. 889, 116 So. 601; Abernathy v. Mobile J. & K. C. R. Co., 97 Miss. 851, 53 So. 5:39; 45 C. J. 1291.

To indicate the decided weight of authority in favor of the proposition that a lease or charter of a vessel containing a covenant to return in good condition, but without obligation to pay for any damages due to ordinary wear and tear or acts of God, does not fix liability where there is no negligence.

Mulvaney v. King Paint Manufacturing Company, 256 F. 612; Shamrock Towing Company, Inc. v. City of New York, 32 F. 684; Wandell v. New Haven Trap Rock Co., 285 F. 339; The Raymond M. White, 290 F. 454; Ames v. Belden, 17 Barb. 513; Young v. Leary, 135 N.Y. 516, 32 N.E. 607; Cary-Davis Tug & Barge Co. v. Fox, 22 Ped. 64; Cowles Towing Co. v. American Constru. Co., 27 F. 622; W. & A. S. Inc. v. Heling Contr. Corp., 50, F. 99; The Minerva, 266 F. 598; The Greenwich, 270 F. 42; Coal Mining Co. v. U.S. 15 F. 367; J. W. Brown Inc. v. Fuller & Co., 153 P. 960.

A covenant to return in good condition, is not intended to cover a failure to return, or a damage to the article due to the negligence of some third person.

Hughes v. Railroad Co., 94. Miss. 242; Meridian Fair & Exposition Co. v. Ry. Co., 70 Miss. 808, 12 So. 555.

It was not contemplated by the contract that the owners would be liable in case they were prevented from carrying out the contract by the destruction of the vessel.

Piaggio v. Somerville, 119 Miss. 6, 80 So. 342.

Farish, Bell & Felts, of Greenville, for appellee.

The contract itself extends the liability to cover the safety of the barge even though it was lost or damaged without any fault whatever on the part of the appellant and that the appellant, under its contract, could escape liability only by showing that the barge was destroyed by an act of God.

24 R. C. L. 1106, section 130; Alaska Coats Co. v. Alaska Barge Co., 79 Wash. 216, 140 P. 334, L.R.A. 1915C. 423; Robertson v. Plymouth Lbr. Co., 165 N.C. 4, 80 S.E. 894; Paradine v. Jane Aleyn, 2682 English Reprint 897; Jemison v. McDaniel, 25 Miss. 83; Harmon v. Fleming, 25 Miss. 135; Abby v. Billups, 35 Miss. 618, 72 Am. Dec. 143; Mitchell v. Hancock County, 91 Miss. 414, 45 So. 571, 15 L.R.A. (N.S.) 833, 124 Am. St. Rep. 796; Anson on Contracts (2 Am. Ed.), 424; Harmon on Contracts, 824; 3 Elliott on Contracts, sec. 1891; 13 C. J. 639; 6 R. C. L. 997, note L.R.A. 1916F, 10; Piaggio v. Somerville, 119 Miss. 6, 80 So. 342.

Where a party by his own contract, engages to do an act, and does not provide against contingencies, and exempt himself from liability in certain events, he is not, in the instance of an absolute and general contract, excused from his performance by an inevitable accident or other contingency, although not foreseen, by, or within the control of the party.

We find the common-law rule, on this subject, stated in the following manner: "Where the law casts a duty on a party, the performance shall be excused, if it be rendered impossible by the act of God. But where a party, by his own contract, engages to do an act, it is deemed to be his own fault and folly, that he did not thereby expressly provide against contingencies, and exempt himself from liability in certain events; and in such case, therefore, that is, in the instance of an absolute and general contract, the performance is not excused by an inevitable accident or other contingency, although not foreseen by, or within the control of the party.

Harmon v. Fleming, 25 Miss. 135; Jemison v. McDaniel, 25 Miss. 83.

For the rule is that when a party by his own contract creates a duty or charge upon himself he is bound to discharge it, although so to do should subsequently become unexpectedly burdensome or even impossible; the answer to the objection of hardship in all such cases being that it might have been guarded against by a proper stipulation.

Piaggio v. Somerville, 119 Miss. 6, 80 So. 342.

Argued orally by Ernest Kellner, Jr., for the appellant, and by H. P. Farish, for appellee.

OPINION

Smith, C. J.

The appellee contracted with the appellant to, and did, deliver to it a barge for use by the appellant for a period of five months, for which it was to pay the appellee two hundred fifty dollars, in installments of fifty dollars per month. The contract stipulates that: "The lessee, Greenville Insulating Board Corporation, agrees to return to the lessor, C. H. McMurray, said barge in the same condition as received. This does not bind the lessee, however, to make payment for any damages due to tornadoes, cyclones, floods, or any act of God. Neither does it bind the lessee to make payment for any damages due to ordinary wear and tear from reasonable use of the barge."

The appellant failed to return the barge at the expiration of the contract, and this suit was instituted by appellee to recover the value thereof, and also an unpaid balance of the rent therefor. The appellant's defense is that the barge was rammed and destroyed by a steamer during a fog, without negligence on its part. At the close of the evidence, the court directed a verdict for the appellee, and there was a judgment accordingly.

The appellee's first contention is that the obligation of the appellant to return the barge to him is absolute, and therefore, if it is unable to return it, it must pay the value thereof.

Unless changed by contract a bailee or lessee of personal property is not an insurer of the property bailed or leased, and it not liable for the value thereof to the bailor or lessor when it is destroyed without negligence on his part. Meridian Fair & Exposition Assn. v. North Birmingham St. Railway Co., 70 Miss. 808, 12 So. 555; Fowler v. Payne, 49 Miss. 32; Levey v. Dyess, 51 Miss. 501. In order for a contract to change this obligation to that of an insurer, it must expressly so provide or contain a stipulation absolutely requiring the redelivery of the property, or a stipulation which is equivalent thereto. Levey v. Dyess, supra. This is in accord with practically all of the authorities, and is but a specific application of the rule applying to agreements to deliver property in the future which is destroyed or perishes before the date fixed for its delivery. This rule is thus stated in section 281, A. L. I Rest. Contracts: "In promises for an agreed exchange, a promisor is discharged from the duty of performing his promise if substantial performance of the return promise is impossible because of the nonexistence, destruction or impairment of the requisite subject-matter or means of performance, provided that the promisor has not himself wrongfully caused the impossibility...