11

juries caused by defects of which he did not know, and could not know in the exercise of reasonable diligence, and is only liable for negligence. So if the defect is latent, and could not have been discovered by careful examination, the bailor cannot be held,10 and if the bailee had actual notice of the defect, the bailor is not liable for his injuries obtained after such notice. The degree of diligence to be exercised depends upon the circumstances, and where the use contemplated might endanger the safety or life of others, the letter is held to a high degree of diligence, and the most watchful care, as in the case of livery stabie keepers, who make a business of letting horses and carriages. So, "a liveryman is bound to exercise the care of a reasonably prudent man to furnish a horse or carriage that is fit and suitable for the purpose contemplated in the hiring," and if a liveryman lets a horse which he knows, or in the exercise of reasonable care could have known, to be dangerous and unsuitable for the service for which it is required, he is liable for injuries caused by its vicious propensities.13

§ 3074. Bailee's right to possession and use. As in all bailments, the bailee has the right of possession pending the accomplishment of the bailment purpose. Since in this case that purpose is the use of the chattel bailed, the bailee has the right to the exclusive use and control of the thing for the purpose for which it was hired, as against all the world, including the letter,11

Higman v. Camody, 112 Ala. 267, 20 So. 480, 57 Am. St. 33; Leach v. French, 69 Maine 389, 31 Am. Rep. 296; Moriarty v. Porter, 22 Misc. (N. Y.) 536, 49 N. Y. S. 1107; Harrington v. Snyder, 3 Barb. (N. Y.) 380; Kissam v. Jones, 56 Hun (N. Y.) 432, 31 N. Y. St. 198, 10 N. Y. S. 94. See cases cited in notes 10, 11, 12, 13. Baker & Lockwood Mfg. Co. v. Clayton, 40 Tex. Civ. App. 586, 90 S. W. 519.

10 Van Zile Bailments (2d ed.), § 123; Horne v. Meakin, 115 Mass. 326; Hadley v. Cross, 34 Vt. 586, 80 Am. Dec. 699.

"Cutter v. Hamlen, 147 Mass. 471, 18 N. E. 397, 1 L. R. A. 429; Goddard Bailments, § 113.

12 Conn V. Hunsberger, 224 Pa.

154, 73 Atl. 324, 25 L. R. A. (N. S.) 372, 132 Am. St. 770. See Payne v. Halstead, 44 Ill. App. 97; Nisbet v. Wells, 25 Ky. L. 511, 76 S. W. 120; Lynch v. Richardson, 163 Mass. 160, 39 N. E. 801, 47 Am. St. 444; Copeland v. Draper, 157 Mass. 558, 32 N. E. 944, 19 L. R. A. 283, 34 Am. St. 314; McGregor v. Gill, 114 Tenn. 521, 86 S. W. 318, 108 Am. St. 919; Huntoon v. Trumbull, 12 Fed. 844, 2 McCrary (U. S.) 314.

or an attaching creditor of the letter,15 and this right is not lost by redelivery to the owner for a temporary purpose.16 The bailee's right to use extends only to the purpose for which it was hired, and not to any other. The extent of his right is consequently mainly dependent upon the agreement between the parties, and he is held to good faith in carrying out this agreement.

§ 3075. Care demanded of hirer-Expenses.-The bailee is held to ordinary diligence in the care of the chattel, and lack of such diligence will be negligence for which he is liable." What is ordinary diligence depends of course upon the character of the thing and the circumstances. The majority of the cases brought upon contracts for the hiring of the use of a thing are those in which a horse has been hired, and this subject affords the best illustration of the care to which the bailee is held. It was said by Mr. Schouler,18 "Unless the bailee took the animal for too short a time, or under a special arrangement whereby the bailor was to look after his own property, he ought to provide the creature regularly with proper food and drink,19 afford due shelter and repose, and, in general, take reasonable heed that the animal, while resting, is so fastened up that it may not readily run away or be stolen.20 While putting the horse to active use he should not harness carelessly, overload,21 overdrive," be heedless of

bard, 25 N. H. 67, 57 Am. Dec. 310; Beach v. Raritan &c. R. Co., 37 N. Y. 457; Cobb v. Wallace, 5 Cold. (Tenn.) 539, 98 Am. Dec. 435; Hickok v. Buck, 22 Vt. 149.

15 Hartford v. Jackson, 11 N. H. 145; Smith v. Niles, 20 Vt. 315, 49 Am. Dec. 782.

16 Roberts v. Wyatt, 2 Taunt. 268. "Story Bailments (9th ed.), §§ 398, 399; Schouler Bailments (3d ed.), § 134; Higman v. Camody, 112 Ala. 267, 20 So. 480, 57 Am. St. 33; Bradley v. Cunningham, 61 Conn. 485, 23 Atl. 932, 15 L. R. A. 679; Evans v. Nail, 1 Ga. App. 42, 57 S. E. 1020; Union Stock Yards & Transit Co. v. Mallory &c. Co., 157 Ill. 554, 41 N. E. 888; Duffy v. Howard, 77 Ind. 182; Chamberlin v. Cobb, 32 Iowa 161; Taussig v. Schields, 26 Mo. App. 318; Ouderkirk v. Central

Nat. Bank, 119 N. Y. 263, 23 N. E. 875; Collins v. Bennett, 46 N. Y. 490; Millon v. Salisbury, 13 Johns. (N. Y.) 211; Clark v. United States, 95 U. S. 539, 24 L. ed. 518, 13 Ct. Cl. (U. S.) 519; Gleason v. Beers' Estate, 59 Vt. 581, 10 Atl. 86, 59 Am. Rep. 757; Baker & Lockwood Mfg. Co. v. Clayton, 46 Tex. Civ. App. 384, 103 S. W. 197.

what he perceives to be the creature's frailties, nor fail to supply, prudently, wants essential to its health and good condition. If disease or bruise be discovered during the bailee's term, he should be discreet in its treatment, and in extremity call in some farrier or expert;28 or else, informing his bailor promptly, throw the responsibility, as he may generally do, upon the owner. He should not take dangerous risks of travel. During his whole term of use the bailee ought to act honorably, humanely, and with such reasonable regard for preserving the animal's value unimpaired as from prudent men might be expected." So when the bailee has fairly followed the terms of his engagement, and has used proper diligence, the bailor must bear all loss occasioned to the animal in the course of its use.25 And if he is ordinarily prudent and careful, the bailee is not liable for injuries caused by the horse's nervous or vicious nature. If the letter knows that the hirer is physically or mentally incapable of giving proper care, as a young child, or an imbecile or cripple, he cannot hold him to the same degree of care as a normal person." But since in this class of cases, personal use by the hirer is not always contemplated, it is held that the bailor may rely upon the bailee's pecuniary responsibility to make good any injury which might occur.28 A hirer who knows that the thing hired is liable to deterioration or injury must exercise commensurate diligence.29 Inevitable accident or superior force excuses the bailee from liability for loss,30 or natural deterioration or wear and tear incident

234; Buis v. Cook, 60 Mo. 391; Wentworth v. McDuffie, 48 N. H. 302; Rowland v. Jones, 73 N. Car. 52; Ray v. Tubbs, 50 Vt. 688, 28 Am. Rep. 519.

23

Story Bailments (9th ed.), § 405; Bray v. Mayne, 1 Gow. 1; Deane v. Keate, 3 Camp. 4; Vaughan v. Webster, 5 Harr. (Del.) 256; Thompson v. Harlow, 31 Ga. 348; Graves v. Moses, 13 Minn. 335.

24 Such as trying to ford a swollen stream. United Tel. Co. v. Cleveland, 44 Kans. 167.

25 Francis v. Shrader, 67 Ill. 272; Buis v. Cook, 60 Mo. 391; Harrington v. Snyder, 3 Barb. (N. Y.) 380; Carrier v. Dorrance, 19 S. Car. 30.

26

Armstrong v. Chicago, M. & St.

P. R. Co., 45 Minn. 85, 47 N. W. 459;
Stacy v. Knickerbocker Ice Co., 84
Wis. 614, 54 N. W. 1091.

"Schouler Bailments (3d ed.), § 138.

28 Schouler Bailments (3d ed.), § 138; Mooers v. Larry, 15 Gray (Mass.) 451.

29 Beale v. South Devon R. Co., 12 W. R. 1115; Wilson v. Brett, 11 M. & W. 113.

30 Watkins v. Roberts, 28 Ind. 167; Field v. Brackett, 56 Maine 121; McEvers v. The Sangamon, 22 Mo. 187; Hyland v. Paul, 33 Barb. (N. Y.) 241; Reeves V. The Constitution, Gilp. (U. S.) 579, Fed Cas. 11659.

to the use of the thing," the sickness and death, or the escape, of a hired animal,32 or loss by robbery or theft,33 unless the bailee's negligence has exposed the property to injury, or contributed thereto.34

It seems that the proper rule in regard to expenses is that the bailee is liable for the ordinary and incidental expenses of caring for the property,35 such as providing suitable food for horses,36 and that the bailor is liable for unforeseen extraordinary expense incurred in preserving the property from loss from unexpected causes for which the hirer was not at fault, or which permanently enhance its value.37 Under the civil law the letter must put the chattel in proper condition for use, and keep it so, but the textwriters do not consider this the rule at common law.38

§ 3076. Bailee's misuse and conversion.-If the bailee in any way uses the property for any other purpose than that permitted by the contract of bailment, he is, of course, liable in breach of contract for any damages thus caused. But the early cases hold that any intentional deviation in use from the agreed purpose is a conversion, and that the bailee thenceforward becomes absolutely liable for any loss or injury to the property. This rule has been frequently applied in cases where a horse was killed or injured when driven or ridden to a place not provided for in the contract of hire,39 and the bailee held liable for con

Mo. 391; Wentworth v. McDuffie, 48 N. H. 402. The bailee of a horse and wagon for hire is liable for the value if they were stolen and he did not use reasonable care to keep watch over the property. Kleiner v. Cohn, 132

N. Y. S. 779.

35 Schouler Bailments (3d ed.), 152; Hale Bailments, p. 201.

Handford v. Palmer, 2 Brod. & Bing. 359, 5 Moore 74.

37 Schouler Bailments (3d ed.), § 152; Story Bailments (9th ed.), § 392; Reading v. Menham, 1 Moo. & Rob. 234; Leach v. French, 69 Maine 389, 31 Am. Rep. 296; Harrington v. Snyder, 3 Barb. (N. Y.) 380; Jones v. Morgan, 90 N. Y. 4, 43 Am. Rep. 131.

33 Schouler Bailments (3d ed.), § 152; Hale Bailments, p. 201.

Malone v. Robinson, 77 Ga. 719;

41

version if he rides or drives a horse beyond the agreed place, or farther than the agreed distance, or keeps him longer than the agreed time,11 or hires him for one purpose or to do one kind of work, and uses him to do another kind of work. 2 The tendency of the later cases and text-writers has been to relax the rule somewhat, Judge Story suggesting that the bailee should not be held liable for conversion if the violation of duty or of contract did not conduce to the loss, and following this line, it has been held that merely taking slaves to work in another county from that specified is not ipso facto a conversion where the loss was not occasioned by such act, and there was no intention to do anything inconsistent with the owner's right, and that merely driving a team beyond the agreed place, without more, is not a conversion. Other cases have held that where the injury was not received while the horse was being used without the limits of the hiring, and was not caused by such use, there is no conversion. 45

44

43

The true test of a conversion is "in an illegal control of the thing converted, inconsistent with the plaintiff's right of property. And as Mr. Schouler says, "The leaven of common sense, which keeps our law in constant ferment, is here at

9946

Homer v. Thwing, 3 Pick. (Mass.) 492; Hall v. Corcoran, 107 Mass. 251, 9 Am. Rep. 30; Martin_v. Cuthbertson, 64 N. Car. 328; Broussard v. Sells-Floto Show Co. (Tex. Civ. App.), 128 S. W. 439. See Palmer v. Mayo, 80 Conn. 353, 68 Atl. 369, 125 Am. St. 123, 15 L. R. A. (N. S.) 428, 12 Am. & Eng. Ann. Cas. 691.

40 Welch v. Mohr, 93 Cal. 371; Murphy v. Kaufman, 20 La. Ann. 559; Morton v. Gloster, 46 Maine 520; Perham v. Coney, 117 Mass. 102; Fisher v. Kyle, 27 Mich. 454; Disbrow v. Tenbroeck, 4 E. D. Smith (N. Y.) 397. See. Carney v. Rease, 60 W. Va. 676, 55 S. E. 729.

Stewart v. Davis, 31 Ark. 518; Whalen v. New York &c. Electric Co., 63 App. Div. (N. Y.) 615, 71 N. Y. S. 593; Martin v. Cuthbertson, 64 N. Car. 328.

45 Mo. App. 332; DeVoin v. Michigan Lumber Co., 64 Wis. 616, 25 N. W. 552, 54 Am. Rep. 649. One who hires horses to draw castings along a public road does not convert a team by unhitching it from the wagon in which it is working, and hitching it to one of his own which is stalled on the road, to assist in getting it out. Weller v. Camp, 169 Ala. 275, 52 So. 929, 28 L. R. A. (N. S.) 1106n.