Williamson v. Phillipoff

• Decision Date: 06 January 1914
• Citation: 64 So. 269,66 Fla. 549
• Parties: WILLIAMSON v. PHILLIPOFF.
• Court: Florida Supreme Court

64 So. 269

66 Fla. 549

WILLIAMSON v. PHILLIPOFF.

Florida Supreme Court

January 6, 1914

Error to Circuit Court, Pinellas County; A. B. McMullen, Referee.

Action by John Phillipoff against J. W. Williamson. Judgment for plaintiff, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

Where a bailment is for mutual benefit, the bailee is held to the exercise of ordinary care in relation to the subject-matter thereof, and is responsible only for ordinary negligence. The bailee is not liable if the subject-matter of the bailment has been injured by some internal decay, by accident, or by some other means wholly without his default, and in the absence of some special stipulation an injury to or loss of the property falls on the bailor.

A bailee for hire, where the use of the thing bailed is the essence of the contract, impliedly undertakes to keep the thing in repair, and must bear such expenses as are incident thereto, unless the necessity for them arises from some defect in the thing against which the bailor has expressly or impliedly warranted it. Extraordinary expenses are charged upon the bailor, and the bailee may compel reimbursement for them.

Where the hired chattel is destroyed without fault of the bailee before the expiration of the period during which he was to have the use of it, he is, in the absence of express stipulation to the contrary, liable only pro tanto for the payment of the hire; but he may agree to terms that will compel him to pay the hire under any circumstances whatever.

In general, the rule is that, independently of special agreement, express or implied, the bailor is not bound to make such repairs as are rendered necessary by ordinary wear and tear, but he is ordinarily bound to provide that the article hired should be in good condition to last during the time for which it is hired, and beyond that he is liable only for extraordinary expenses arising from unexpected causes.

The bailor, by the bailment, impliedly warrants that the thing hired is of a character and in a condition to be used as contemplated by the contract, and he is liable for damages occasioned by the faults or defects of the article hired.

COUNSEL C. B. Parkhill, of Tampa, and John U. Bird, of Clearwater, for plaintiff in error.

Hilton S. Hampton and Dozier A. De Vane, both of Tampa, for defendant in error.

OPINION

SHACKLEFORD C.J.

John Phillipoff brought an action at law against J. W. Williamson to recover damages alleged to be due the plaintiff from the defendant for the hire of a lighter. The defendant filed pleas of never was indebted as alleged, never promised as alleged, discharge and satisfaction by payment, and a fourth plea, to which a demurrer was interposed, whereupon the defendant filed an amended fourth plea, which is as follows:

'Fourth. That the lighter mentioned in the first count of plaintiff's said declaration was at the time, to wit, on the 16th day of September, A. D. 1910, when same was hired to this defendant by the plaintiff, worm-eaten and decayed to such an extent that this defendant was unable to complete the work with said lighter for which same was hired by this defendant, to wit, to be used in the work of building and erecting a certain bridge in Pinellas county, Fla.; that the condition of the said lighter was at the time the same was hired by this defendant from the said plaintiff, as aforesaid, for the purpose aforesaid, unknown to this defendant; that the plaintiff did, when he hired said lighter to this defendant, as aforesaid, then and there know that this defendant then and there hired said lighter for the purpose aforesaid; that afterwards, to wit, on the 16th day of October, A. D. 1910, the aforesaid lighter did, without any fault or negligence on the part of this defendant, leak, fall apart, and sink, so that this defendant was then and there unable to complete said work with said lighter, or to return same to the plaintiff; that it was the duty of the plaintiff, under the law in such cases provided, to keep said lighter in a serviceable and floatable condition, and to have repaired same; that this defendant used all reasonable and ordinary care in the use of said lighter when same was in his possession and control and used as aforesaid, and used same in a reasonable and ordinary manner for the purpose aforesaid, and that said lighter did, without any fault or negligence whatsoever on the part of this defendant, leak, fall apart, and sink as aforesaid; that this defendant then and there gave notice to the plaintiff of the said condition of said lighter, and then and there, to wit, the day last aforesaid, requested the plaintiff to repair same so that this defendant could complete the work with said lighter for which same was hired, as aforesaid, or return the same to the plaintiff; and that the plaintiff then and there failed and refused to repair same, and still doth fail and refuse so to do, and that the defendant then and there, to wit, at the date last aforesaid in the county and state aforesaid, offered and tendered said lighter to the plaintiff, and the plaintiff then and there refused to accept same.'

To this amended fourth plea the plaintiff interposed a demurrer, which, omitting the formal parts, is as follows:

'Now comes the plaintiff in the foregoing cause, and says that the fourth amended plea filed by the defendant is...