Gagnon v. Dana , 69 N.H. 264 ( 1897 )

The brackets having been loaned by the defendants for the use of the borrower, without any reward or compensation to be received by them from him, their only duty in respect of defects was to inform him of any of which they were aware, and which might make the use of the loan perilous to him or to his servants, one of whom was the plaintiff. "The ground of this obligation is that when a person lends he ought to confer a benefit, and not to do a mischief." Shir. L. C. 43, 44, and authorities generally. But the obligation of a mere lender goes no further than this, and he cannot, therefore, be made liable for not communicating anything which he did not in fact know, whether he ought to have known it or not. MacCarthy v. Young, 6 H. N. 329; Blakemore v. Railway, 8 E. B. 1035, 1050, 1051; Shearm. Red. Neg. (3d ed.), s. 197, note; 2 Par. Cont. (5th ed.) 109; 1 Add. Cont. *353; 2 Wait Act. Def. 268; Sch. Bailm., s. 79; Sto. Bailm., s. 275.

Resting upon such authority, and being so consonant to reason and justice that it cannot but be the law, the rule thus enunciated necessarily renders erroneous the reiterated instruction to the jury that the defendants might be liable for the plaintiff's injury "if they knew or ought to have known that the brackets furnished were unsafe and unsuitable for use on the building." While a gratuitous lender "must be taken to lend for the purpose of a beneficial use by the borrower," and is rightfully "responsible for defects in the chattel, with reference to the use for which he knows the loan is accepted, of which he is aware, and owing to which directly the borrower is injured" (Blakemore v. Railway, supra, per Coleridge, J.), it would be the grossest injustice, as well as extending the law beyond any recognized principle, to subject him to liability for defects of which he is not aware; and especially in a case like this, where the defect complained of was apparently as open to ascertainment by the plaintiff as it could possibly have been to the defendants.

The instruction that "it is not material whether anything was paid for the use of the brackets or not," was no less erroneous upon the question of the defendants' liability. While in many respects the duties and liabilities of the parties are materially different in the case of a gratuitous bailment and one for hire, it is enough for the present purpose to observe, that while in the former the benefit is exclusively to the bailee, and therefore the liability of the bailor for defects in the thing loaned extends only to those which are known to him and not communicated to the bailee, in the latter, the bailment being for the mutual benefit of both alike, the bailor's obligation is, and of right ought to be, correspondingly enlarged; and it is therefore his duty to deliver the thing hired in a proper condition to be used as contemplated by the parties, and for failure to do so, he is justly liable for the damage directly resulting to the bailee, or his servants, from its unsafe condition. This distinction is fundamental and of universal recognition.

The relation of master and servant not existing between the plaintiff and the defendants at the time of his injury, their request to have the jury specifically so instructed should have been granted. The duties and obligations of a master to his servant in respect of tools and appliances for performing the labor for which he is engaged, differ widely from those of a gratuitous lender to the borrower, and a radically different rule obtains in the one case than in the other.

The defendants' additional requests, making actual knowledge of the defect the test of their liability, should also have been given, not only because the law is so, but because under the instructions which were given, the jury might well have found that the defendants did not know of the defect and still have found them chargeable with it, on the ground that they ought to have known it.

In view of the errors to which attention has been called, it is deemed unnecessary to go farther and specifically consider other exceptions relating to the instructions given and refused; but we think it should be added that, owing to the misapprehension by the court of the obligations of the defendants to the plaintiff and of the legal relation between them, the instructions generally were not such as the case required.

The defendants can take nothing by their exceptions to the denial of their motions for a nonsuit and to direct a verdict in their favor. If at the time the plaintiff rested he had not adduced competent evidence to sustain a verdict in his favor (as to which no intelligent opinion can be expressed without additional facts), it is now immaterial because the defendants, instead of risking their case upon their exception to the denial of their motion for a nonsuit, went on with the trial and introduced their evidence, and the deficiency, if any, of the plaintiff's evidence was supplied by one side or the other before the case went to the jury, inasmuch as it is found that at some stage of the trial there was testimony from numerous witnesses to and against the defendants' knowledge of the bracket's defective and unsound condition; so that when all the proof was in the case, there was no ground of exception for the reason of its insufficiency to sustain a verdict for the plaintiff, and this being so, it is wholly indifferent by which party the proof was introduced. Fletcher v. Thompson, 55 N.H. 308, 309, and authorities cited; Oakes v. Thornton,28 N.H. 44, 47 (per Woods, J.). And this testimony also rendered the renewal of the motion at the close of the evidence unseasonable (Brown v. Insurance Co., 59 N.H. 298, 307), and precluded the granting of the motion to direct a verdict for the defendants. Shepardson v. Perkins, 58 N.H. 354,355.

The result is that the defendants' exceptions on this branch of the case are overruled, and their other exceptions hereinbefore considered sustained.

Verdict set aside.

CLARK, J., did not sit: the others concurred.