Broussard v. Declouet

delivered the opinion of the court. The plaintiff charges that the defendant received a quantity of seed cotton from the 1 * plaintiff to be ginned and baled; and not ing his promise to deliver it ginned and baled, has refused to do so. Further, that he, the plaintiff, delivered to the defendant a quantity of cotton in the seed to be ginned and baled, and the defendant promised faithfully to keep the same for the plaintiff; notwithstanding which, he so carelessly kept the same, that it was destroyed and consumed by fire through his negligence and carelessness. It is averred that the defendant was to receive compensation for ginning, baling, and taking care of the cotton.

The defendant pleaded that the plaintiff’s cotton was destroyed by fire, with the gin, gin-house, and other property of the defendant’s by a fortuitous and uncontrolable event, over which he had no power, and which he could not *260have prevented by any care, prudence or foresight. Prescription was also pleaded.

There was judgment for the defendant, and t|le p}ainti{F appealed.

At the trial the plaintiff objected to the introduction of testimony to prove the destruction of the cotton by an accidental fire; con tending that the defendant should be confined to evidence of a destruction by fire; “ by a fortuitous and uncontrolable event,over which, the defendant had no power, and which he could not have prevented by any care, prudence, or foresight,” as stated in the answer. The plaintiff’s objection was overruled, and he took a bill of exceptions.

We are of opinion the district judge did not err; proof of an accidental fire was an incipient proof of the fire alleged in the answer, which was to be completed by evidence of other cir. cumstances.

The bailment of the cotton to the defendant being for the common advantage of the bailor and bailee, the latter was bound to use that care, diligence, and attention which prudent roen use in their own concerns; and the defendant has maintained his allegation if the fire which consumed the plaintiff’s cotton was the *261result of an accident which he could not prevent by the care, prudence, and foresight which prudent men use in their own concerns. This was a mere question of fact, and the district judge who heard the testimony from the lips of witnesses, has concluded that such care, prudence, and foresight had been taken. We have carefully examined the evidence, and i appears to us completely to justify the conclusion at which the district judge arrived.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed, with costs.