work, recalling the injustice of visiting blameworthy and blameless deviation with the same penalties of absolute or insurance accountability. One hires a horse for a given journey, but unexpectedly encounters a friend, and turns off to visit him, using, all the while, a prudent care of the animal; or he finds obstructions in the road, and changes the point of destination to another which must have equally suited his bailor, or he misses his way. Such instances are matters of every-day occurrence. And how few who hire a carriage and drive carefully believe themselves tied down to a literal performance, irrespective of all emergencies which may possibly occur too far off for consulting the bailor. How few imagine that, for a little longer or a little different ride, they incur an extra risk, beyond that of paying, possibly, an extra hire. * * * [A serviceable defense] lies in a just and reasonable interpretation of the bailment undertaking itself, which, if pursued with ordinary prudence, under all the circumstances, ought not to be too literally construed against a bailee who may have found himself in some unforeseen emergency, and, while far from the bailor, obliged to act upon his own judgment. For one who hires may be presumed to have much latitude, as to time and methods of enjoyment; and local usage and the good sense of the contract should interpret favorably, where restrictive use was not clearly specified. If hiring be general, any prudent use of the thing is permissible; and even if it be particular, terms not fairly meant for exclusion need not warp the hirer's discretion, if he is prepared to pay a reasonable compensation according to his use; and more especially so where an exigency happens which calls for the exercise of a discretion on his part without consulting the bailor."47 The foundation of the liability in cases where the bailee is held guilty of a conversion is rather in tort than in contract, therefore it is no defense to the bailee that the contract of hiring is void because made on Sunday, or voidable because the bailee is an infant.

48

The de

Homer V. Thwing, 3 Pick. (Mass.) 492; Freeman v. Boland, 14 R. I. 39, 51 Am. Rep. 340; Towne v. Wiley, 23 Vt. 355, 56 Am. Dec. 85; Ray v. Tubbs, 50 Vt. 688, 28 Am Rep. 519.

struction of personal property under hire by the bailee amounts to a conversion.50

53

§ 3077. Third persons and subusers.-The bailee, since he holds a special property in the thing hired, may bring an action against any person who injures it or interferes tortiously with his possession, during the time his right exists.1 The bailor, having the general property, is not bound to look to the bailee alone, but has the same right as the bailee to bring an action against a third party,52 with the exception that if the hiring is for a term specified, the letter may not bring trover or replevin until the expiration of the term, but may sue for an injury to the reversion.** The negligence of a bailee for hire is not imputable to the bailor in an action by the bailor against a third person for an injury to the property, and he may recover from a third person whose negligent or wrongful act caused the destruction or injury of the bailment, even though the bailee's negligence was contributory to the loss.55 In this latter instance, the bailor may have a right of action when the bailee would have none. The converse of this proposition is true, that the bailor is not liable to third persons for the negligence of the bailee, his servants or agents." The bailee is liable to the bailor not only for

56

60 Kiskadden v. United States, 44 Ct. Cl. (U. S.) 205.

Croft v. Alison, 4 Barn. & Ald. 590; McGill v. Monette, 37 Ala. 49; Ludden v. Leavitt, 9 Mass. 104, 6 Am. Dec. 45; Rindge v. Inhabitants of Coleraine, 11 Gray (Mass.) 157; Bliss v. Schaub, 48 Barb. (N. Y.) 339; Hopper v. Miller, 76 N. Car. 402.

53 Gordon v. Harper, 7 T. R. 9; Pain v. Whittaker, Ryan & M. 99; New York, L. E. & W. R. Co. v. New Jersey Electric R. Co., 60 N. J. L. 338, 38 Atl. 828, affd. 61 N. J. L. 287, 41 Atl. 1116, 43 L. R. A. 849.

53

Clarke v. Poozer, 2 McMul. (S. Car.) 434; Swift v. Moseley, 10 Vt. 208, 33 Am. Dec. 197.

Schouler Bailments (3d ed.), § 154; Howard v. Farr, 18 N. H. 457; White v. Griffin, 4 Jones (N. Car.)

139.

Currie v. Consolidated R. Co., 81

Conn. 383, 71 Atl. 356; Sea Ins. Co. v. Vicksburg &c. R. Co., 159 Fed. 676, 86 C. C. A. 544, 17 L. R. A. (N. S.) 925; Welty v. Indianapolis & V. R. Co., 105 Ind. 55, 4 N. E. 410; Kellar v. Shippee, 45 Ill. App. 377; Illinois Cent. R. Co. v. Sims, 77 Miss. 325, 27 So. 527, 49 L. R. A. 322; New Jersey Electric R. Co. v. New York L. E. & W. R. Co., 61 N. J. L. 287, 41 Atl. 1116, 43 L. R. A. 849; Puterbaugh v. Reasor, 9 Ohio St. 484; Gibson v. Bessemer &c. R. Co., 226 Pa. St. 198, 75 Atl. 194, 18 Am. & Eng. Ann. Cas. 535.

56

Claypool v. McAllister, 20 Ill. 504; Sproul v. Hemmingway, 14 Pick. (Mass.) 1, 25 Am. Dec. 350n; Hofer v. Hodge, 52 Mich. 372, 18 N. W. 112, 50 Am. Rep. 256; Carter v. Berlin Mills Co., 58 N. H. 52, 42 Am. Rep. 574; Schular v. Hudson River R. Co., 38 Barb. (N. Y.) 653.

60

his own negligence or default, but for the default or negligence of his servants or children in regard to the thing hired." The reason is that there is no privity between the bailor and those to whom the bailee permits the enjoyment of the property, therefore the bailor must look to the bailee. The rule was applied where a servant of the hirer rode a horse to death, or left a stable door open and allowed it to escape,58 where the servants, guests, children and boarders of the hirer defaced the furniture in ready-furnished lodgings," or is applicable generally in any instance where subagents employed by the hirer negligently injure the property." The liability rests, however, rather on the principle of agency than that of master and servant. It seems that the better rule is that the master is liable, not merely for the acts of the servant within the scope of his authority, but also for those which are within the course of his employment, even though the particular act may be unauthorized. But where one let a brougham and a coachman to drive it, the owner of the brougham was not liable for a theft of the traveler's goods, which were silversmith's samples, committed by the coachman, for such an act was without the course of his employment. The bailee's liability rests upon the ground that he acts through instrumentalities when he acts through servants, guests, children or subagents, and that one who sets in motion an instrumentality animate or inanimate, rational or irrational, which injures another is liable. Necessarily, the bailee is liable to third persons under the ordinary rules applying to agents and servants, and the bailor who sends a servant

67

61

Story Bailments (9th ed.), § 401; 2 Kent Comm. (4th ed.), 586, 587; Hale Bailments, p. 204 et seq.; Schouler Bailments (3d ed.), §§ 145, 146.

Jones Bailments, 89; 1 Black. Comm. 430, 431; Coggs v. Bernard, 2 Ld. Raym. 909; Salem Bank v. Gloucester Bank, 17 Mass. 1, 9 Am. Dec. 111.

Jones Bailments, 89; Story Bailments (9th ed.), § 400; Schouler Bailments (3d ed.), §§ 145, 146; Smith v. Bouker, 49 Fed. 954, 1 C. C. A. 481. 60 Schouler Bailments (3d ed.), §§ 145, 146; Story Bailments (9th ed.), § 401; Randleson v. Murray, 3

Nev. & P. 239, 8 Adol. & E. 109; Bush v. Steinman, 1 Bos. & P. 409; Hilliard V. Richardson, 3 Gray (Mass.) 349, 63 Am. Dec. 743; Hall v. Warner, 60 Barb. (N. Y.) 198; Mims v. Mitchell, 1 Tex. 443.

Note, Jag. Torts, 239-280; Hale Bailments, p. 207; Mallach v. Ridley, 47 Hun (N. Y.) 638, 24 Abb. N. Cas. (N. Y.) 172, 181, 15 N. Y. St. 4, 9 N. Y. S. 922.

62 Cheshire v. Bailey (1905), 1 K. B. 237, 1 Am. & Eng. Ann. Cas. 94 and note.

63 Hale Bailments, p. 208, citing Innes, Torts; Schouler Bailments (3d ed,), § 146.

to care for the thing hired is liable for the acts of such servant not outside of the course of his employment. If two persons jointly hire a thing for use, either is liable for the negligence or misconduct of the other resulting in its injury.

65

§ 3078. Assignability of bailee's rights.-The bailee at will, where either party may at his pleasure terminate the bailment, and the bailee in whom the bailment is a personal trust, have no assignable interest in the chattel whose use is bailed to them for hire, and any assignment by them passes no interest, but instead terminates the bailment, authorizing the owner to bring an action in trover or conversion.66 But in certain circumstances where there is no personal confidence it would be entirely in accord with the purpose of the bailment that the hirer should assign his interest, as where property is leased for a number of years with the use of the furniture or of farm implements and stock, in which case the lessee, unless forbidden by his contract, may sublet, and assign his right to the use of the chattels."

§ 3079. Special classes of hiring the use of a thing-Property for exhibition.-Where a general or special invitation is given to persons to deliver articles to a corporation or association or another person for the purpose of exhibition in public, to be redelivered after the exhibition, the bailment is one of hire, since both parties receive a benefit, and the invitation and the placing of the articles in the care of the exhibitor form a sufficient consideration, so that the bailee is held to ordinary care.68

05

See notes 61 and 62.

Davey v. Chamberlain, 4 Esp. 229; O'Brien v. Bound, 2 Speers (S. Car.) 495, 42 Am. Dec. 384. Where one hires a horse and the other rides as a passenger or friend, and takes no part in the control, the hirer only is responsible (Dyer v. Erie R. Co., 71 N. Y. 228), but if the other abets, both are liable. Banfield v. Whipple, 10 Allen (Mass.) 27, 87 Am. Dec. 618.

Russell v. Favier, 18 La. 585, 36 Am. Dec. 662; Crocker v. Gullifer,

70

§ 3080. Special classes-Storekeeper or bath-house keeper as hired bailee of personal belongings of customer or patron. -A bailment is for hire, even though no direct hire is paid for the bailment, where it is a necessary incident of a business in which the bailee makes a profit." This rule was applied where the proprietor of a bath-house invited its patrons, when they purchased tickets entitling them to a bath, to place their valuables in a box, the key to which was given to the patron, and while a patron was bathing, the key was taken by a trespasser from the pocket of his clothing hanging in the dressing room, and turned in to the attendant, who delivered a gold watch and money to the holder of the key, and it was held that the proprietor was liable for the loss of the goods, which had been caused by want of ordinary care for their preservation. The same rule is applied where one who goes into a retail clothing store to purchase clothing is invited by a salesman to place his valuables in a certain place, or to lay his clothing in a certain place, while trying on garments, and it is necessary and usual for certain articles of clothing to be removed when trying on others, or for an article such as a watch to be removed from the person, and through want of ordinary care on the part of the proprietor of the store or his clerk, the articles of clothing or valuables laid aside, or valuables contained in the pockets of these articles, are taken, the proprietor is held liable for the loss." But where a customer, knowing that the clerks are busy, proceeds to wait on himself, and without express or implied invitation lays aside his coat and vest to try on garments, knowing that no clerk is there to watch them, and the garments are stolen when there is no one but himself to watch them, he can not hold the proprietor of the store liable. This might perhaps be considered as the hiring of

ΤΟ

72

See cases cited in notes 70 and 71. Tombler v. Keolling, 60 Ark. 62, 28 S. W. 795, 27 L. R. A. 502, 46 Am. St. 146; Walpert v. Bohan, 126 Ga. 532, 55 S. E. 181, 8 Am. & Eng. Ann. Cas. 89, 6 L. R. A. (N. S.) 828, 115 Am. St. 114; Sulpho-Saline Bath Co. v. Allen, 66 Nebr. 295, 92 N. W. 354, 1 Am. & Eng. Ann. Cas. 21; Levy v. Appleby, 1 City Ct. (N. Y.)

"Delmour v. Forsythe, 128 N. Y. S. 649; Bunnell v. Stern, 122 N. Y. 539, 25 N. E. 910, 10 L. R. A. 481, 19 Am. St. 519, rehearing denied, 26 N. E. 758; Woodruff v. Painter, 150 Pa. St. 91, 24 Atl. 621, 16 L. R. A. 451, 30 Am. St. 786.

72 Wamser v. Browning, King & Co., 187 N. Y. 87, 79 N. E. 861, 10 L. R. A. (N. S.) 314n.