#### E. I. Du Pont De Nemours Powder Co. *v.*Parsons.

*Assumpsit.*

(Decided June 3, 1913.

62 South. 988.)

1. *Contracts; Pleading and Proof; Variance.*— Where a plea averred the contract of plaintiff to carry specific articles to a certain place and claiming damages for a failure to deliver certain of them, it is not supported by evidence of a contract of hiring by defendant 'from plaintiff of teams and drivers under which defendant had the right to determine what disposition or use it would make of such teams and drivers.

*2482. *Appeal and Error; Harmless Error; Instructions.*— Where the plaintiff was not liable for any negligence of the driver, a refusal to give a charge requested by defendant asserting that under the evidence plaintiff’s driver was negligent in losing certain of defendant’s articles, was harmless.

Appeal from Birmingham City Court.

Heard before Hon. John H. Miller.

Assumpsit by C. P. Parsons against the E. I. Du Pont De Nemours Powder Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

The evidence tended to show that plaintiff was in the livery business in Bessemer and made a verbal contract or agreement with a Mr. Waller, representing the defendant, covering the hire of a team and driver to the defendant, for which defendant was to pay so much per day for the team and driver, while defendant’s testimony tended- to show that the defendant was to pay by the trip. Plaintiff testified that he had nothing to do with the team and driver after he turned them over to Mr. Waller, and that Mr. Waller would take charge of same and load the wagon with whatever he wanted to haul and send it, wherever he wanted to go, and that plaintiff would never see the team and driver until it came back to the stable at night. The defendant’s evidence tended to show that Mr. Waller would take charge of the team and driver, see that the wagon was loaded, and direct the driver where to go, but that no one connected with the defendant had anything to do with the driver and team after it left defendant’s magazine at Bessemer, and that some time in June a wagon was loaded with 48 cases of carbonite, the driver given a slip or ticket for the same, and instructed to carry it to the magazine of the Tennessee Coal, Iron & Railroad Company at Sumter, and that only 41 of the cases were delivered, seven being lost. The pleadings sufficiently appear.

*249Tlie following charges were refused to defendant:

(1) Affirmative charge.

\2) Affirmative charge for defendant on its plea of set-off and recoupment.

“(3) If you believe all the evidence in this case, plaintiff’s driver was negligent in and about losing the carbonite or dynamite of defendant between its magazine at Bessemer and the magazine of the Tennessee Coal, Iron & Railroad Company at Sumter.”

A. G. & E. D. Smith, for appellant.

The duty is on stable keepers to select and furnish drivers with skill, caution and experience, and the slightest neglect or disregard of this requirement creates a liability for injuries occasioned thereby. — 25 Cyc. 1514; 17 South. 869; 145 S. W. 155; 9 N. e' 392; 92 Pac. 224; 6 N. Y. Supp. 618. The fact that the wagon was that of plaintiff can make no difference. — 91 N. E. 291; 96 N. E. 406; 6 M. & W. 499. The fact that defendant’s agent directed the loading can make no *difference.*— Ewing *v. Shaio,*83 Ala. 333; 110 111. App. 332. Whether the defendant was paying by the day or by the trip, it was plaintiff’s team and plaintiff’s driver, and he necessarily had charge and control of the *situation.*— Peters *v. So. Ry.,*135 Ala. 533. The court should have granted a new *trial.*— Gassenheimer *v. Wes. Ry.,*57 South. 718.

Goodwyn & Ross, for appellee. Counsel discuss errors assigned, but without citation of authority.

WALKER, P. J. —

To this action on an account the defendant pleaded the general issue and a special plea which averred that the plaintiff did, on a day named, undertake to carry or haul for a reward 48 cases of carbonite for defendant from Bessemer to Sumter, and re*250ceived and took charge of said carbonite for said purpose, and negligently failed to deliver seven cases thereof of a stated value, the claim for the amount whereof the defendant offered to set off or recoup against the demand of the plaintiff. Plainly the contract averred in the special plea is one of carriage whereby the plaintiff undertook to carry and deliver the goods mentioned for a reward. No evidence in the case tended to prove that such a contract was entered into. While the evidence offered by the respective parties did not correspond in all details, it was without conflict to the effect that the plaintiffs undertaking was to furnish for the defendant’s use wagons, teams, and drivers at a stated price per day; that it was left to the defendant to determine the hauling to be done, it being agreed that the price for a day’s hire would be paid if a load was sent to certain named places at which the defendant had occasion to make deliveries of goods, and that half of that price was to be paid if the load was sent to other named places not so far away. This evidence had no tendency to prove that the plaintiff obligated himself as alleged in the special plea. The plea avers a contract to carry specified articles to a designated place. The evidence shows a contract of hire, under which the defendant had the right to determine what, if any, use it would make of the wagon and team and of the services of the driver furnished. There was such a variance between the allegation and the proof that the plaintiff would have been entitled to the general charge with hypothesis as to the defense set up by the special plea. This being true, the appellant could not have been prejudiced by the court’s refusal to give written charges 2 and 3 *(Emmett et al. v. Hooper,*157 Ala. 586, 47 South. 1006; *Christian v. Denmark,*156 Ala. 390, 47 South. 82) ; and, evidence having been offered which tended to *251support the claim sued on, charge 1 was properly refused.

Affirmed.