Casey v. Suter

Miller, J., delivered the opinion of the Court. •. • The proof in this case shows that the defendant borrowed from the plaintiff a sulky and harness in order to drive and exercise his horse over the track in the fair grounds of an agricultural society, and whilst so driving, the horse ran away, and broke, and greatly injured or destroyed the sulky. The declaration is in assumpsit and contains only the counts for goods bargained and sold, for work done and materials. provided, and the common money counts. The case was tried on issue joined on the plea of non assumpsit. Testimony on both sides was offered and admitted without objection, and thereupon the defendant offered eight prayers which were rejected, and the Court gave two instructions in lieu thereof.

These rulings are presented for review. ³ The contract between the parties constitutes that species of bailment usually called commodatum, or the loan of an article for a certain time to be used by the borrower without paying for the use, and then to be specifically returned. It appeared in proof that the sulky was the property of the plaintiff’s father and not of the plaintiff, though the latter had it in his possession, use, and control, at the time it was thus borrowed by the defendant, and the contract of borrowing was made with the plaintiff alone. The defendant’s first and second prayers deny the right of the plaintiff to maintain the action, and assume that none but the general owner can sue. This proposition is obviously wrong, for it is quite clear that any one clothed by the owner with rightful possession of the property, may maintain an action for breach of a contract like the present, and recovery therein will be full satisfaction, and may be pleaded in bar of any subsequent suit by the latter.

There was no error in rejecting these prayers. The third, fourth, and fifth prayers have been abandoned, and that necessarily concedes the correctness of the Court’s first instruction. The sixth prayer asserts that if the articles were used according to the purpose of the loan, the defendant is not responsible for any accidents that were consequent upon such use. This fails to state the true measure of obligation and responsibility for neglect resting upon the bailee under this species of bailment, and was properly rejected.

The appellant has no cause to complain of the rejection of his seventh prayer, which exempts him from responsibility, if the jury find the injury was occasioned by unavoidable accident, because he had the benefit of the Court’s second instruction to the effect that, if the jury found the defendant borrowed from the plaintiff the sulky and harness in question and that they were injured or destroyed while in the defendant’s possession,