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ordinary chattel. This is clearly shown
by the case of Swigert v. Graham, 7 B.
Monr. 661. It was an action on the
case, brought by the plaintiff against
the owners of a certain steamboat, to
recover for the loss of one Edmund, the
plaintiffs slave, who, while employed
as a hired hand upon the defendants'
boat, was drowned in the Kentucky
river. Marshall, C. J., in delivering the
opinion of the court, said : — " The ma-
terial question in the case is, whether,
under the actual circumstances, the
owners of the boat are liable for the
loss of the slave by being drowned
while in their employ. And this ques-
tion depends not merely upon the gene-
neral principles applicable to the case
of bailment on hire, as they are stated or
adjudged in relation to inanimate or to
mere animal property, but upon the
proper application or modification of
those principles in reference to the par-
ticular case of a slave hired for service
as a common hand onboard of a steam-
boat ensa^.jd in the navigation of the
Kent" .h.y and Ohio rivers. The rule
that the bailee on hire is bound to ordi-
nary diligence, and responsible for ordi-
nary neglect, is doubtless true in all



CH. XII.]



BAILMENT.



604



The hirer is equally responsible for the negligence of his
servants as for his own ; provided that this negligence occurred



cases of their bailment, unless there be
fraud, or a special contract by which it
may be varied in the particular case.
But what is or is not ordinary diligence
may vary, not only with the circum-
stances under which the subject of it
may be placed, but with the nature of
the suliject itself. That which, in re-
spect to one species of property, might
be gross neglect, might in respect to
another species be extraordinary care.
And, under peculiar circumstances of
danger, extraordinary exertions may be
required of one who is bound only to
ordinary diligence, or, in other words,
the circumstances may be such, that
extraordinary exertions are nothing
more than ordinary diligence. Ordi-
nary diligence, then, means that degree
of care, or attention, or exertion, which,
under the actual circumstances, a man
of ordinary prudence and discretion
would use in refei'ence to the particular
thing were it his own property, or in
doing the particular thing, were it
his own concern. And where skill
is required for the undertaking, ordi-
nary diligence implies the possession

and use of competent skill

.... Applying these principles to
the case of a slave hired either for gene-
ral or special service, we come at once
to the conclusion, that being ordinarily
capable, not only of voluntary motion,
by which he performs various services,
but also of observation, experience,
knowledge, and skill, and being in a
plain case at least as capable of taking
care of his own safety as the kirer or
owner himself, and presumably as much
disposed to do it, from his possession of
these qualities, with habits and dispo-
sition of obedience implied in his con-
dition, and on which the hirer has a
right to rely, he may be expected to
understand and perform many, and in-
deed most, of his duties, by order or
direction more or less general, without
constant supervision or physical con-
trol, and may be relied on, unless under
extraordinary circumstances, for taking
care of his own safety without par-
ticular instructions on that subject, and
a fortiori, without being watched or fol-
lowed, or led, to keep him from running
unnecessarily into danger. What sort



VOL. I.



53



of care or diligence, then, is the hirer to
use for the safety or preservation of the
hired slave ? Omitting to notice what
may be necessary to his health and
comfort, we should say that he ought
not, by his orders, to expose him to ex-
traordinary hazard, without necessity,
though they be incident to the nature of
the service ; and that when he does ex-
pose him to such hazards, necessarily
or properly, he should use such precau-
tions, by instructions or otherwise, as
the circumstances seem to require, and
as a man of ordinary prudence would
use in so exposing his own slave. It
might be necessary in sending him to
the bottom of a deep well, or to the
eave of a steep roof, to tie a rope
around his waist. But if he were pos-
sessed of ordinary intelligence, it could
not be required that, in sending him
across a wide bridge, he should even be
cautioned not to jump or fall from it.
Nor if there were a ford as well as a
bridge crossing the river, both ordinari-
ly safe, and with each of which the slave
was well acquainted, would it be deemed
necessary to direct him to take the one
and avoid the otlicr, unless there were
some circumstances known or appre-
hended at the time, changing the usual
condition of one or the other ? Cer-
tainly it would not be necessary, when
there was on the road which he was
accustomed to travel a ford to be cross-
ed, with which he was well acquainted,
to tell him cither not to go out of the
usual track into the deep water, or not
to take another road which he was not
accustomed to travel, and which passed
the river at a more dangerous place.
In the navigation of our rivers by steam
boats, it might become necessary, in a
particular case, that some one on Ijoard
should swim to the shore with a line,
though the attempt might be attended
with great danger. This, though inci-
dent to the navigation, would be an ex-
traordinary hazard, and doubtless it
should not be ordered, nor even pei'-
mitted to be incurred without the use
of such precautions within the power of
the captain or other officer, as expe-
rience might indicate for the occasion.
But when the boat is aground, on a
bar or shoal, where the water on each

[625]



G05



THE LAW OF CONTRACTS.



BOOK III.



when the servant was in the discharge of his duty, or obey-
ing the commands or instructions of his master, express or
implied. When not so employed, the person, though gene-
rally a servant, does not then stand in the relation or act in the
capacity of a servant, so as to fasten a liability for his con-
duct on his master ; and a master, therefore, would not be
responsible for an injury committed by a servant from his
own wilful malice, in which the master had no share, (s) If



side, and to the shore on each side, is
not more than three feet deep, it could
not be deemed necessary, in ordering a
particular individual to go to the shore
through the water, to do more, even if
he were unacquainted with the bar,
and could not see it plainly, than to
point out its extent, or the direction
which he must take to the shore, or to
advise caution in his proceeding, or to
give such instruction as was necessary.
But if he were well acquainted with the
bar, or it were plainly visible through
the water, and were, moreover, wide
and safe, the direction to go to the
shore would of itself be sufficient. It
might be ordinarily assumed that the
individual, whether white or black,
slave or freeman, if he had common
sense, would not go from the bar into
the deep water, and the person giving
the order would not be bound to antici-
pate such a deviation, and either to
forbid it, or in any manner to guard
against it, but might pursue his own
employment. Nor do we suppose that,
if he knew the individual to be a swim-
mer, and saw that he was purposely de-
viating from the bar, with the view of
swimming a few yards to the shore, he
would be bound to order him back, or
to caution him against it, unless from
the temperature of the water, or some
other fact, he had reason to apprehend
danger. The direction to go to the shore
on such an occasion implies, without
more said, that he should go by the
known and safe way. It is only when,
from the uncertainty or difficulty of
the way, or from some other circum-
stance, there may be danger in execu-
ting the order given, that it is necessary,
in the exercise of ordinary care or dili-
gence, to accompany it Avith any other
words or acts than such as are essential
to make it intelligible and practicable."
This point is well illustrated also by

[626]



the case of Heathcock v. Pennington,
11 Ired. 640. The defendant had hired
of the plaintiff a slave boy, about twelve
years of a age, to drive a whim near the
shaft of a gold-mine. The boy, while
working there at night, being without
an overcoat, had gone to the fire to
warm himself, and on his being called
to start his horse, being drowsy, fell
into the mine and was killed. It was
held, in an action by the plaintiff to re-
cover the value of the slave, that the
defendant was bound to use such dili-
gence as a man of ordinary prudence
would, if the property were his own ;
that as a slave was a rational being, so
much care was not necessary as would
be required of the bailee of a brute or
an inanimate thing ; that as the plain-
tiff had let the slave for this very pur-
pose, he must be presumed to know all
the dangers and risks incident to the
employment ; and, therefore, as it did
not appear that the usual risks were in
any way increased, that he could not
recover. But where a slave was hired
to work in gold-mines, in which wooden
buckets were used for raising up water
and ore, in which were valves for let-
ting out the water, and an iron drill
was dropped into a bucket, and fell
through the valve, and split the skull of
the slave, it was held to be a want of
ordinary care. Biles v. Holmes, 11
Ired. 16. See also, as to the duties and
responsibilities of the hirers of slaves,
McCall V. Flowers, 11 Humph. 242;
Mims V. Mitchell, 1 Tex. 443 ; Sims v.
Chance, 7 Tex. 561 ; Mitchell r. Mims, 8
Tex. 6 ; McLauchlin v. Lomas, 3 Strob.
L. 85 ; Alston v. Balls, 7 Eng. (Ark.)
664 ; Jones v. Glass, 13 Ire. L. 305.

(s) Einucane i\ Small, 1 Esp. 315;
Foster v. Essex Bank, 17 Mass. 479;
Brind v. Dale, 8 C. & P. 207. See also
Butt V. Great Western Eailway Co. 7 E.
L. & E. 443. But see Sinclair v. Pearson,



CH. XII.]



BAILMENT.



606



the loss occur through theft or robbery, or the injury result
from violence, the hii'er is only answerable when his impru-
*dence or negligence caused or facilitated the injurious act.
If a bailee for hire sells the property without authority, the
bailor may have trover against even a bond fide purchaser, [t)
When the thing bailed is lost or injured, the hirer is bound
to account for such loss or injury, But when this is done,
the proof of negligence or want of due care is thrown upon
the bailor, and the hirer is not bound to prove affirmatively
that he used reasonable care, (w)



7 New Hamp. 219. See also ante, p.
87, n. (aa.)

{t) Loeschman v. Machin, 2 Starkie,
311 ; Cooper v. Willomatt, 1 C. B. 672.

(u) Beckman v. Shouse, 5 Ilawle,
179; Clark v. Spencc, 10 Watts, 335 5
Runyan v. Caldwell, 7 Humph. 134 ;
Piatt V. Hibbard, 7 Cow. 500, 11. (a) ;
Schmidt v. Blood, 9 Wend. 268 ; Foote
V. Storrs, 2 Barb. 326 ; Harrington v.
Snyder, 3 Barb. 380. This question
was very thoroughly discussed in the
case of Logan v. Mathews, 6 Barr, 417.
The court below in that case instructed
the jury that, " when the bailee returns
the property in a damaged condition,
and fails, either at the time or subse-
quently, to give any account of the mat-
ter, in order to explain how it occurred,
the law will authorize a presumption of
negligence on his part. But when he'
gives an account, although it may be a
general one, of the cause, and shows
the occasion of the injury, it then de-
volves on the plaintiff to prove negli-
gence, unskilfulness, or misconduct."
And this instruction was held to be cor-
rect. Coulter, J., said: — "The books
are extremely meagre of authority on
this subject of the onus prohandl in cases
of bailment. But reason and analogy
would seem to establish the correctness
of the position of the court below. All
persons, who stand in fiduciary relation
to others, are bound to the observance
of good faith and candor. The bailor
commits his property to the bailee, for
reward, in the case of hiring, it is true ;
but upon the implied undertaking that
he will observe due care in its use. The
property is in the possession and under
the oversight of the bailee whilst the
bailor is at a distance. Under these
circumstances, good faith requires that



if the property is returned in a damaged
condition, some account should be given
of the time, place, and manner of the
occurrence of the injury, so that the
bailor may be enabled to test the accu-
racy of the bailee's report, by suitable
inquiries in the neighborhood and lo-
cality of the injury. If the bailee re-
turns the buggy, (which was the pro-
perty hired in this case,) and merely
says, " Here is your property, broken
to pieces," what would be the legal and
just presumption ? If stolen property
is found in the possession of an indi-
vidual, and he will give no manner of
account as to the means by which he
became possessed of it, the presumption
is that he stole it himself. This is a
much harsher presumption than the one
indicated by the court in this case. The
bearing of the law is always against
him who remains silent when justice
and honesty require him to speak. It
has been ruled, that negligence is not
to be inferred, unless the state of facts
cannot otherwise be explained. 9 Eng.
Jurist, 907. But how can they be ex-
plained, if he in whose knowledge they
rest will not disclose them ? And does
not the refusal to disclose them justify'
the inference of negligence 1 Judge
Story, in his treatise on Bailments,
§ 410, says that it would seem tliat the
burden of proof of negligence is on the
bailor, and that proof merely of the loss
is not sufficient to put the bailee on liis
defence. The position that v.'e arc now
discussing, however, includes an ingre-
dient not mentioned by Judge Story,
and on which it turns ; that is, the refu-
sal or omission of the bailee to give
any account of the manner of the loss,
so as to enable the bailor to shape and
direct his inquiries and test its accuracy.

[627J



607



THE LAW OF CONTRACTS.



BOOK III.



The owner must deliver the thing hired in a condition to
be dsed as contemplated by the parties ; (v) nor may he in-
terfere with the hirer's use of the thing while the hirer's pro-
perty continues, (iv) Even if the hirer abuses the thing
hired, as a horse hired for a journey, although the owner
may then, as it is said, repossess himself of the thing, if he
can do so peaceably, he may not do so forcibly, but must
resort to his action, (x) And if such misuse of the thing
hired terminates the original contract, the owner may de-
mand the thing, and, on refusal, bring trover ; or, in some
cases, without demand, (y)

The owner is said to be bound to keep the thing in good
order, that is, in proper condition for use ; and, if expenses
are incurred by the hirer for this purpose, the owner must
repay them. On this subject, however, there is some uncer-
tainty in the cases. The cases usually referred to on this



Judge Story says there are discrepan-
cies in the authorities. In the French
law, as stated by him, §41 ^ the rule is
different ; and the hirer is bound to
prove the loss was without negligence
on his part. And he cites the Scottish
law to the effect that if any specific in-
jury has occurred, not manifestlfi^ the
result of accident, the onus prohandi lies
on the hirer to justify himself by prov-
ing the accident. That would be near
the case in hand, because the injury
here was not manifestly the result of
accident, and the hirer did not even
explain or state how the accident oc-
curred. The case of Ware v. Gay, 11
Pick. 106, seems to have a strong ana-
loo-y to the principle asserted. It was
there ruled that where a public carriage
or conveyance is overturned, or breaks
down, without any apparent cause, the
law will imply negligence, and the bur-
den of proof will be on the owners to
rebut the presumption. The prima fade
evidence arises from the fact that there
is no apparent cause for the accident.
And in the case in hand, there was no
apparent cause; nor would the hirer
rrive any account of the cause. We
Think, therefore, there was no error in
adding to the answer the qualification
or explanation which we have been
considering." See also Skinner v. Lon-
don, Brighton, and Southcoast Railway

[628]



Co. 2 E. L. & E. 360. And in Bush v'
Miller, 13 Barb. 481, where property
was delivered to the defendant, who re-
ceived the same, and engaged to forward
it, but it was never afterwards seen nor
heard of, and the defendant never ac-
counted for it in any way, it was held
that he was prima facie liable for the
goods without proof of negligence,
which proof could not be required un-
less he gave some account of his dis-
position of the property.

{v) Sutton V. Temple, 12 M. & W. 52,
60.

{w) Hickok V. Buck, 22 Verm. 149.
In this case the defendant leased to the
plaintiff a farm for one year, and, by
the contract, was to provide a horse for
the plaintiff to use upon the farm dur-
ing the term. At the commencement
of the term he furnished a horse, but
took him away and sold him before the
expiration of the term, without pro-
viding another. It was held that the
plaintiff acquired a special property in
the horse, by the bailment, and was en-
titled to recover, in an action of trover,
for the horse so taken away, damages
for the loss of the use of the horse dur-
ing the residue of the term.

(:r) Lee v. Atkinson, Yelv. 172.

(y) See the case of Fouldes v. Wil-
lou'ghby, 8 M. & W. 540, as to what
will amount to a conversion.



CH. XII.]



BAILMENT.



G08



point relate to real estate ; (z) but the hirer of land, or of a
real chattel, has neither the same rights nor obligations with
the hirer of a personal chattel. Perhaps the conflicting opi-
nions may be reconciled, by regarding it as the true principle
*that the owner is not bound (unless by special agreement,
express, or implied by the particular circumstances) to make
such repairs as are made necessary by the natural wear and
tear of the thing, or by such accidents as are to be expected,
as the casting of a horse-shoe after it has been worn a usual
time ; but is bound to provide that the thing be in good con-
dition to last during the time for which it is hired, if that
can be done by reasonable care, and afterwards is liable only
for such repairs as are made necessary by unexpected
causes, (a)

On the part of the hirer there is an implied obligation to
use the thing only for the purpose and in the manner for
which it was hir^d ; and in no way to abuse it. (b)

The hirer must surrender the property at the time appoint-
ed ; and if no time be specified in the contract, then when-
ever called upon after a reasonable time ; and what this is



(-) Pomfret v. Ricroft, 1 Saund. 321 ;
Taylor v. Whitehead, Douglas, 744 ;
Cheetham v. Hampson, 4 T. E. 318 ;

Ferguson v. , 2 Esp. 590 ; Ilorse-

fairr. Mather, Holt, N. P. 7.

(a) There is very little direct author-
ity in our books upon this question. In
Pomfret v. Eicroft, 1 Saund. 321, Lord
Hale says : — " If I lend a piece of
plate, and covenant by deed that the
party to whom it is lent shall have the
use of it, yet if the plate be worn out by
ordinary use and wearing without my
fault, no action of covenant lies against
me." But this is only a dictum. So in
Taylor v. Whitehead, Doug. 744, Lord
Mansjield says in general terms, that by
the common law he who has the use of
a thing ought to repair it. But he pro-
bably had his mind upon real property.
In the case of Isbell v. Norvell, 4 Grat.
176, it is held that where the hirer of a
slave pays a physician for attending on
the slave while he is hired, he is entitled
to have the amount repaid him by the
owner of the slave. But in the case of
Eedding v. Hall, 1 Bibb, 536, the same
question was decided the other way,

53*



after a careful [examination of the au-
thorities. It is impossible to say with
certainty what the true rule of law is
until we have further adjudication. But
it seems to be certain that the hirer of
an animal is bound to bear the expense
of keeping it, unless there is an agree-
ment to the contrary. See Handford
V. Palmer, 2 Brod. & Bing. 359.

(6) Homer v. Thwing, 3 Pick. 492 ;
Rotch V. Ilawcs, 12 Pick. 136; Whee-
lock I'. Wheelwright, 5 Mass. 104; De
ToUenere v. Fuller, 1 So. Car. Const.
Eep. 116 ; Duncan v. Rail Road Com-
pany, 2 Rich. 613 ; Columbus v. How-
ard, 6 Geo. 213; Harrington v. Snyder.
3 Barb. 380. In the case of Mullen v.
Enslcy, 8 Humph. 428, the defendant,
having hired a slave of the plaintiff, for
general and common service, set him to
blasting rocks, and the slave while so
engaged was severely injured. Tlie
court held the defendant liable. Ami
Turley, J., said : — " We arc of opinion
that the employment of blasting rocks
is not an ordinary and usual one; that
it is attended with more personal dan-
ger than is common to the usual voca-

[629]



609 THE LAW OF CONTRACTS. [BOOK III.

will be determined in each case by its nature and circum-
stances, (c)

By the contract of hire, the hirer acquires a qualified pro-
perty in the thing hired, which he may maintain against all
persons except the owner, and against him so far as the
terms and conditions of the contract, express or implied, may
warrant, [d) During the time for which the hirer is entitled
to the use of the thing, the owner is bound not to disturb
him in that use; and if the hirer returns it to the owner for
a temporary purpose, he is bound to return it to the hirer, (e)

It is" held that if a hirer fastens hired chattels to real estate,
in such a way that they cannot be removed without injury to
the real property, a purchaser of the land, without notice,
holds the chattels, and the owner of them must look to the
hirer for compensation. (/)

The letter for hire acquires an absolute right to, and property
in, the compensation due for the thing hired ; and this compen-
sation or price, where not fixed by the parties, must be a
reasonable price, to be determined, like the time for which
the thing is hired, by the nature and circumstances of the
case.

The contract of hire may be terminated by the expiration
of the time for which the thing was hired, or by the act of
either party within a reasonable time, if no time be fixed by
the contract. Or by the agreement of both parties at any
time. Or by operation of law, when the hirer becomes the
owner of the thing hired. Or by the destruction of the thing
hired. If it perish without the fault of either party, before
any use of it by the hirer, he has nothing to pay ; if after

tions of life ; and that a bailee, who has received wounds of which he died, and

hired a negro for general and common in an action by the o^^Tier to recover

service, has no right to employ him in the value of the slave from the hirer,

such an occupation, without the consent the jury gave a verdict for the defend-

of his owner." But in the case of Mc- ant, the court refused to grant a new

Lauchlin v. Lomas, 3 Strobh. 85, where trial. Richardson, J., dissented.

a negro was let to hire as a house (c) See Esmay v. Fanning, 9 Barb.

carpenter, and was employed by the 176.

hii"er in his shop, where he carried on (d) See Hickok v. Buck, 22 Verm.

the business of a house carpenter, and 149, cited ante, p. 607, n. (w.)

where his workmen were accustomed to (e) Roberts v. Wyatt, 2 Taunt.

use a steam circular saw, when neces- 268.

sary for their work at the business, and (/) Fiyatt v. The Sullivan Com-

the negro, while at work at the saw, pany, 5 Hill, 116, 7 Id. 529.

[630]



CH. XII.] BAILMENT. *610

some use, it may be doubted how far the aversion of the law
to apportionment would prevent the owner from recovering
pro tanto ; probably, however, where the nature of the case
admitted of a distinct and just apportionment, it would be
applied, [g) Either party being in fault would of course be
* answerable to the other. And the contract might provide
for the contingency of the destruction of the property in any
manner.

LocATio oPERis FACiENDi. The cascs in which the bailee
is to do some work or bestow some care upon or about the
thing bailed, may be conveniently divided into those where,

1. Mechanics are employed in the manufacture or repair
of the article bailed to them.

2. Warehousemen or wharfingers are charged with the
custody of the thing bailed.

3. Postmasters receive letters to be sent as directed.

4. Innkeepers receive the goods of guests.

Where mechanics are employed to make up materials fur-



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