Meridian Fair & Exposition Ass'n v. North Birmingham St. R. Co.

• Decision Date: 20 March 1893
• Citation: 12 So. 555,70 Miss. 808
• Parties: MERIDIAN FAIR & EXPOSITION ASSOCIATION v. NORTH BIRMINGHAM STREET RAILWAY COMPANY
• Court: Mississippi Supreme Court

12 So. 555

70 Miss. 808

MERIDIAN FAIR & EXPOSITION ASSOCIATION v. NORTH BIRMINGHAM STREET RAILWAY COMPANY

Supreme Court of Mississippi

March 20, 1893

FROM the circuit court of Lauderdale county, HON. S. H. TERRAL Judge.

Appellant the Meridian Fair & Exposition Association, at its exhibition in 1890, had contracted with one Fisk to make a number of balloon ascensions for the entertainment of its visitors. In order to have what is called a race, it was necessary to have two balloons, which Fisk was to furnish. He applied to appellee, the North Birmingham Street Railway Company, for whom he had made some ascensions, to borrow a balloon to be used for the purpose stated. He showed the manager of the railway company the contract between the fair association and himself, and explained to him that the proposed balloon ascension had been advertised, but that, unless he could borrow a balloon, the ascension would not take place. The record does not show that this interview was known to the fair association at the time. Fisk was regarded as financially irresponsible by the manager of the railway company, and he refused to lend him the balloon without security for its return. Thereupon, at the suggestion of Fisk, the following telegram was sent to appellant:

"BIRMINGHAM ALA., October 9, 1890.

"George M. Hodges, Secretary, Meridian:

I will let I. N. Fisk have a balloon to use at Meridian on condition that you will be responsible for its being shipped back to me. Answer if you will be responsible.

RANDOLPH PEYTON,

General Manager."

The following telegram was received in reply:

"MERIDIAN MISS., October 9, 1890.

"We will be responsible.

G. M HODGES, Secretary."

There was no further communication, and, thereupon, the general manager of the railway company, as an accommodation to Fisk, shipped the balloon, in good condition, to him at Meridian, and he proceeded with the ascension on the grounds of the fair association. When the balloon had ascended some distance above the ground, it took fire in some unexplained way, and was destroyed.

Afterwards, the manager of the railway company applied to appellant for the return of the balloon, and was informed that it could not be returned, because it had been destroyed by fire. No explanation was offered as to the cause of the fire. Thereupon, this suit was brought by appellee to recover of the fair association the value of the balloon. A jury trial was waived, and the case was tried by the court. On the trial, the above facts, substantially, were shown. Fisk was not examined as a witness. There was no testimony showing the cause of the fire. Witnesses who saw it, could not explain its origin. From a judgment in favor of plaintiff, this appeal is taken. The opinion contains a further statement of the case.

Reversed and remanded for new trial.

McIntosh, Williams & Russell, for appellant.

Appellant had no contract with plaintiff for the use of the balloon. It had contracted with Fisk, and appellee loaned the balloon as an accommodation to him. Appellant's obligation was simply to return it after it had been used.

It is not even shown that there was any negligence on the part of Fisk, and this was necessary to establish liability as against defendant. Schouler on Bailments, § 23; Story on Bailments, § 410.

But the burden of proof was on plaintiff to show negligence of the fair association. Story on Bailments, §§ 278, 410; Schouler on Bailments, § 23, and authorities there cited.

Miller & Baskin, for appellee.

1. Appellee, by its telegram, agreed absolutely for the return of the balloon. The failure to return it fixed liability. Where a party, by contract, creates a charge upon himself, he is bound to make it good, if he may, notwithstanding any accident, because he might have provided against this. School District v. Dauchy, 68 Am. Dec., 371.

Where property is placed in a bailee's hands in good condition, and is not returned, the burden of exculpation is upon him, especially if the loss cannot ordinarily occur without negligence. The bailor must make out a prima facie case by showing the delivery of the thing in good condition, and the bailee's failure to redeliver. The prima facie case being made out, the inference is then deducible that the bailee is to blame. In such case, it rests upon the bailee to exonerate himself by showing that he was not negligent. Schouler on Bailments, § 23 et seq., and authorities cited; Ford v. Simmons, 13 La. Ann., 397; Collins v. Bennett, 46 N.Y. 490.

The defendant should have returned the balloon or given some reason why it could not do so; failing in this, it was liable. Story on Bailments, §§ 278, 411, 529. It gave no excuse, but merely answered that the balloon had been burned, and this, too, notwithstanding the facts in reference to the burning were within its knowledge. It could have easily shown the facts. Its failure to do so was an...