James v. Orrell

• Decision Date: 16 June 1900
• Parties: JAMES v. ORRELL et al.
• Court: Arkansas Supreme Court

Page 931

57 S.W. 931

68 Ark. 284

JAMES v. ORRELL et al.

Supreme Court of Arkansas.

June 16, 1900.

Appeal from circuit court, Conway county; Jeremiah G. Wallace, Judge.

Action by Orrell and Gray against one James to recover damages for goods stolen and destroyed by fire while in his possession. Judgment for plaintiffs, and defendant appeals. Reversed.

This suit was brought in the Conway circuit court by appellees against appellant for the value of a bale of cotton claimed by them to have been stolen from his gin through his negligence, and for the value of seven other bales claimed to have been burned and destroyed by reason of his negligently permitting his gin to be destroyed by fire. In response to a motion to make the complaint more definite and certain, an amended complaint was filed. In the amended complaint it is charged that in the year 1897 appellee Gray made a crop of cotton on which appellee Orrell had a mortgage for an unpaid supply account: that Gray hauled eight bales of his cotton to James' gin for the purpose of having it ginned; that the cotton was delivered into the gin on the 1st day of November, 1897: that, on the 2d day of November, James negligently permitted one bale of the cotton to be stolen; that on the 10th day of November the gin house was destroyed by fire, and the other seven bales of cotton thereby burnt up and destroyed; that the gin house and cotton therein were destroyed by reason of the negligence of James in "permitting loose cotton and other combustibles to accumulate on the floors of said gin house, thereby rendering it hazardous and liable to fire to an unusual degree"; and that he "negligently permitted his gin machinery to become out of repair, and negligently permitted the same to be operated by inexperienced and incompetent operators"; and that "he negligently refused to gin said cotton for the plaintiffs, although requested to do so, but kept the same in said gin house, and ginned other cotton that had been received after the cotton of plaintiffs had been delivered into said gin, and negligently permitted the same to remain in said gin house, and said cotton was destroyed."

The answer admitted everything but the allegations of negligence. It was alleged that only seven bales were delivered to the gin, and that James had a landlord's lien on the cotton that would reduce the amount of the recovery; but, as the amount of the recovery is not in question now, it is not deemed necessary to further refer to any issue but the one of negligence, raising the question of appellees' right to recover any sum whatever. The answer expressly denied the allegation of negligence, and further alleged that he was ready and willing to gin the cotton, and began ginning it about a week before the theft of the bale, and that Gray stopped the ginners, and ordered them to hold the cotton in the gin house without ginning till further orders from him, and that while so holding the cotton it was lost and destroyed, and that but for such delay caused by Gray's orders the cotton would all have been ginned and ready for delivery long before the loss. The case was tried before a jury. Finding and judgment for plaintiffs for $168.11. The principal issues on the trial, and the only ones here, arise out of the allegations of negligence. The evidence to sustain and disprove the negligence charged in the complaint was conflicting. The plaintiffs and several witnesses testified on behalf of plaintiffs, and their testimony tended to establish the negligence charged in the complaint. The defendant and several witnesses testified on his behalf, and their testimony tended to disprove the negligence charged; the testimony on that point being conflicting. Appellant on the trial offered to prove the allegation in his answer that at the time of the loss he had for several days been holding the cotton for the accommodation of Gray, and obeying his orders by postponing the ginning; counsel at the time stating to the court that the evidence was not offered to prove or disprove negligence, but to show the nature of the bailment, etc. The court refused to allow the evidence, and appellant at the time excepted. The court's charge on points other than the burden of proof was not objected to. On the burden of proof, over appellant's objection,...