3

general purpose.1 The rule does not apply so as to relieve the employer from liability for his own negligence; as in continuing to use a defective and dangerous engine, with notice of its condition; 2 or in continuing to use a dangerous structure or machinery with knowledge of its defects;3 or in the employment of incompetent or dissipated servants or agents. The employer is bound for the use of reasonable care and discretion in the prosecution of his business, including all its separate parts; and the agent or servant cannot recover where he has been guilty of contributory negligence.5

§ 396. Acts of nonfeasance by a servant do not bind the principal; the servant's refusal to deliver a chattel on the demand of a stranger, is no evidence of a conversion by his master: but the servant's refusal under the command of his master, is a conversion by the latter." Nonaction by the servant on a demand by a stranger, for want of authority, is within the line of his duty; and a subsequent approval of his conduct in that particular, will not render his principal liable as for a conversion; nor will such a refusal render the servant liable for a conversion. From the nature of his situation, the servant is entitled to some consideration ; and it seems he is not obliged to assume the responsibility of deciding on a question of title. A bailee is less favored. 10 And it is held that a conversion by an agent binds his principal, where he accepts and appropriates the benefits of the tortious act, with knowledge of all the facts.11

§ 397. The legal sense of some words is more limited and specific, and of others it is broader than the popular sense. A man who is hired by

1 Russell v. Hudson R. R. R. Co., 17 N. Y., 134, 153; Boldt v. N. Y. C. R. R. Co., 13 N. Y., 432.

2

Keegan v. Western R. R. Co., 8 N. Y. (4 Seld.), 175; Kunz v. Stuart, 1 Daly, 431.

3 Ryan v. Fowler, 24 N. Y., 410; Ormond v. Holland, 96 Eng. Com. Law R., 100; Snow v. Housatonic R. R. Co., 8 Allen, 441; Warner v. Erie. R. Co., 39 N. Y., 468; Coughtry v. Globe Woolen Co., 56 N. Y., 124.

4 Wright v. N. Y. C. R. Co., 25 N. Y., 562; master's duty in employing serv ants or agents; Lanning v. N. Y. C. R. Co., 49 N. Y., 521; Claghorne v. N. Y. C. & H. R. R. Co., 56 N. Y., 44.

5 Looman v.

Brockway, 3 Robt., 74; 39 N. Y., 468; Spelman v. Fisher Iron Co., 56 Barb., 151; Brown v. Maxwell, 6 Hill, 592.

6 Storm v. Livingston, 6 John. R., 44.

7 Shotwell v. Few, 7 John. R., 302.

Mount v. Derick, 5 Hill, 455.

9 Mires v. Solebay, 2 Mod., 242; Alexander v. Southey, 5 Barn. & Ald., 247 ; Thompson v. The Sixpenny Savings Bank of N. Y., 5 Bosw., 293, 309; 6 Bosw., 113.

10 Rogers v. Weir, 34 N. Y., 463.

11 Cobb v. Dows, 10 N. Y., 335; Olmsted v. Hotailing, 1 Hill, 317.

the year at a fixed salary, though of full age, holds the legal relation of a servant to his employer;1 and the relation is the same where the employee is to occupy a house to be furnished by his employer. The legal relation is the same as it is where the hiring is by the day, by the month or by the piece; the relation rests upon the contract; and there does not appear to be any distinction under the common law, as enforced in this country, between menial and other servants.

Under the Code of Louisiana there are three kinds of servants recognized: 1. Those who only hire out their service by the day, week, month or year, in consideration of certain wages. 2. Those who engage to serve for a fixed time for a certain consideration, and who are therefore considered not as having hired out, but as having sold their services. 3. Apprentices, that is, those who engage to serve any one in order to learn some art, trade or profession. The first of these classes include domestics, who receive wages and stay in the house of the person employing them, for his service or that of his family; such as valets, footmen, cooks, butlers and other house servants. These may leave their employer without assigning any reason, and they may be dismissed in the same arbitrary manner.3 Other employees are placed upon a different footing, and their relation to their principal is purely one of contract. As with us, masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed; a responsibility which attaches only when the master might have prevented the act, causing the damage, and has not done it.

§ 398. The servant is responsible to his master for ordinary care and diligence, and for the exercise of that degree of skill which is requisite to a reasonable performance of the work he undertakes; an architect employed to build a bridge, on a plan of his own, for a high degree of skill, a mechanic or artisan for skill in his calling; and an ordinary servant employed to drive horses, for such skill as may reasonably be expected under the contract of hiring.7

5

1 Woodward v. Washburn, 3 Denio, 369; Hart v. Aldrich, Cowper, 54; Hall v. Hollander, 4 Barn. & Cress., CCO; Haywood v. Miller, 3 Hill, 90.

2 The employer may maintain an action against a third party for enticing away his servant. Haight v. Badgely, 15 Barb., 499; Campbell v. Cooper, 34 N. Hamp., 49.

3 Code, Arts. 157, 3172, 2718.

Idem, Arts. 2719, 2720, 2721.

Mayor &c. of Albany v. Cunliff, 2 N. Y., 165. Ante note to § 77.

Duncan v. Blundell, 3 Stark., 6; Farnsworth v. Garrard, 3 Campb., 39;

Moneypenny v. Hartland, 1 Carr. & P., 352; 2 id., 378.

7 Newton v. Pope, 1 Cowen, 109.

§ 399. Onus Probandi. It rests with the party alleging a fact, by way of maintaining or defending an action, to establish it by evidence; this is the general rule, and there is no exception in favor of the party letting chattels on hire. If he allege an injury or loss of his property through the negligence of the defendant, a bailee for hire, he is bound to establish the fact by evidence; it is not ordinarily enough for him to prove an injury, or loss while the property was in the hirer's custody; he must also shew that it was caused by the negligence of the bailee. His proof must be sufficient to support a verdict, finding the fact of negligence.1

A return of a hired horse injured in such a way as does not ordinarily occur without negligence, reasonably casts upon the hirer the burden of proving how the injury occurred, and that it was not caused by his negligence. E. g., where a horse is hired in a healthy and sound condition, and returned in a foundered and disabled condition, it is justly incumbent on the hirer to exculpate himself. So in many cases proof of the injury, and of the circumstances attending it, raises a presumption of negligence by the bailee.3

§ 400. A total refusal to return the property without assigning any reason therefor, is a conversion of it, and dispenses with any further proof; and where the form of the action requires it, it is proof from which a loss by the defendant's negligence may be inferred. The failure to return prima facie proves a loss by the defendant's negligence; 5 and a failure to return a part of the goods, with an allegation that they have been lost by theft accompanied by some proof tending to support it, presents a question of fact for the jury. A return of the property in a

1 Harrington v. Snyder, 3 Barb., 390. This was a case of hiring, and it holds that the burden of showing negligence rests with the plaintiff; the same rule was held in Newton v. Pope, 1 Cowen, 103; both cases relate to an alleged injury of a horse by carelessness. Runyon v. Caldwell, 7 Humph. R., 134 ; Browno v. Johnson, 29 Texas, 43. Proof of a conversion by the defendant supersedes the necessity of more specific evidence. Ante §§ 60, 61. The form of the action also bears on the burden of proof. Ante § 62; §§ 155–159; § 354; 46 N. Y., 271, 278; 109 Mass., 452; 99 Mass., 605; Perham v. Coney, 117 Mass., 102.

2 Collins v. Bennett, 46 N. Y., 490, 494; McDaniel v. Robertson, 26 Vt., 340. 3 Curtis v. Rochester & S. R. Co., 18 N. Y., 534, 538, 544.

4 Bush v. Miller, 13 Barb., 481; Logan v. Mathews, 6 Barr. R. 417; Cumins v. Wood, 44 Ill., 416.

Burnell v. N. Y. C. R. R. Co., 45 N. Y., 184, 189; 5 Robt., 404; Clarke v. Spence, 10 Watts R., 335; Tompkins v. Saltmarsh, 14 Serg. & Rawlo, 275.

6 Schwerin v. McKic, 51 N. Y., 180, 186; Brown v. Waterman, 10 Cush., 117; Lichtenheim v. Boston & Prov. R. Co., 11 Cush., 70; having taken due care of the property, the bailee is not liable for a loss by theft. Hard v. Nearing, 44 Barb., 472, 488.

damaged condition, without giving any explanation of the fact, under circumstances where he cannot reasonably remain silent, is held to cast upon the hirer the burden of shewing that the injury was not caused by his negligence; on the ground that the facts are peculiarly within his knowledge. He owes an affirmative duty to return the property unharmed, unless it has been injured from natural decay or from some accident or other means without fault on his part; and since injuries from these causes are exceptional, proof of a return of the goods in a damaged condition is reasonably sufficient to put the bailee on his defence.

§ 401. There being no antecedent contract on the part of the bailce, his mere omission to return a parcel, does not establish a loss by his negligence; nor does it prove a conversion, where the package (of money) is not found on a search made; or where bills of exchange are accidentally lost. Plaintiff must establish prima facie his cause of action;2 and he may do this under some circumstances, by proving a total failure to return the property. For example, a warehouseman failing to deliver goods, is bound to show that the loss of them occurred without a want of ordinary care or diligence on his part; but is not, it seems, bound to show the precise manner of the loss. And a watchmaker failing to return a watch received by him for repairs, must show that he used due and reasonable care of the property. He must do this where he alleges that the property has been stolen from him. He must support his allegation by proof, and so excuse his failure to fulfill his contract."

§ 402. On the commencement of a trial the onus probandi rests with the party holding the affirmative on the issue. In an action of trover the plaintiff must prove his title and a conversion by the defendant; and the fact of conversion may be proved in many ways. E. g., it may be proved by showing that the defendant hired the goods or chattels in question for use in a particular manner, or on certain terms and con

1 Logan v. Mathews, 6 Barr. R., 417; Newstadt v. Adams, 5 Duer, 43, 46; Willard v. Bridge, 4 Barb., 361, 367; Van Horne v. Kermit, 4 E. D. Smith, 453, 456; Arent v. Squire, 1 Daly, 347; Beekman v. Schonse, 5 Rawle, 189; Clark v. Spencer, 10 Watts, 337; Cox v. O'Reilly, 4 Ind., 371; 51 N. Y., 180, 183.

2 Pittock v. Wells, Fargo & Co., 109 Mass., 452; Smith v. First National Bank in Westfield, £9 Mass., C05; Salt Springs National Bank v. Wheeler, 48 N. Y., 492.

3 Lichtenheim v. Boston & Prov. R. Co., 11 Cush., 70; Schwerin v. McKie, 51 N. Y., 180, 186.

4 Brown v. Waterman, 10 Cush., 117.

The hirer is under a contract to return the property. Hunt v. Wyman, 100 Mass., 193.

ditions; and that he used and injured or destroyed them, in a different manner or in violation of the contract of hiring. And whatever be the form of the action, the hirer ought to be held liable for all damages, and every mischance or accident befalling the goods or chattels while thus used without authority. He is not to be considered in any better position than a trespasser, where he uses the hired chattel for a different purpose, or in a different manner, from that agreed upon: it does not lie with him to say that the property was destroyed or injured without any want of care on his part, while he was using it without permission. His position does not materially differ from that of a man who hires a horse for a pleasure drive on a Sunday, and uses him in violation of the void contract; and is held liable for a conversion of the property, on the ground that his use of it exceeds his authority."

§ 403. Accession. The increase of herds or flocks, hired for a term of years, belongs to the person who hires them; he acquires under his contract all the profit, utility and advantages to be derived from them during the term; he gains his title and interest by virtue of the contract, and will not take the increase, where under a fair interpretation, the agreement does not give him the increase; as where a mare is taken to pasture, in consideration of her service; or where a slave was hired for the season, and the increase was considered as accruing to the owner; while under a term for years or for life, the tenant took the issue.

5

1 Ante § § 381-383; Perham v. Coney, 117 Mass., 102.

2 Beach v. Raritan & Del. Bay R. R. Co., 37 N. Y., 457; 5 Bosw., 121, 130; 28 N. Y., G00; Sarjeant v. Blunt, 18 John. R., 74; Perham v. Coney, 117 Mass., 102. 3 Hall v. Corcoran, 107 Mass., 251. No effect is given to the hiring as a contract, because it is illegal; as an authority, it relieves the hirer from all liability, while he acts within its terms; exceeding its terms, he becomes a wrongdoer and liable. Ante § § 377, 378, 381–393.

4 Wood v. Ash, Owen, 138; Putnam v. Wyley, 8 John. R., 432; Concklin v. Havens, 12 John. R., 314; applied here to the increase of a slave held for a term: principle assumed in Pierce v. Page, 28 Vt., 34; and in Bartlett v. Wheeler, 44 Barb., 162; Bellows v. Denison, 9 N. H., 293; Hasbrook v. Bouton, GO Barb., 413.

• Allen v. Allen, 2 Penn. R., 166; Codo Louisiana, Arts. 536, 527, 539; seo principle applied in Hasbrook v. Bouton, 60 Barb., 413.

Concklin v. Havens, supra; Bohn v. Headley, 7 Har. & John. R., 257; Standiford v. Amoss, 1 IIar. & John. R., 526. Under the system of slavery, the hirer was required to take reasonable care of slaves hired by him, and to treat them with a humane sense of duty: Lundsford v. Baynham, 10 Humph. R., 267; Ewing v. Thompson, 13 Miss. R., 132; Biles v. Holmes, 11 Ind. R., 16. The wool from a flock of sheep belongs to the owner; Groot v. Gile, 51 N. Y., 431; as to the effect of a lease of premises with fixtures, see Wood v. Beath, 23 Wis.,