Bailey v. Moulthrop

The opinion of the court was delivered by Redfield, J. This is an action on the case, counting on the defendant’s negligence. The plaintiff avers that he placed his horse in the defendant’s keeping, to be by him agisted for reward, and by defendant’s negligence the horse was gored by defendant’s bull and killed. In the course of the testimony the plaintiff gave evidence that the bull was mentioned as being in one of the defendant’s pastures, and likely to endanger the safety of the plaintiff’s horse, and that defendant agreed to keep the horse in another pasture, where he would not be expqsed to that danger. This testimony was admitted without objection. After the testimony was closed, the defendant moved the court to direct a verdict for the defendant for variance between the contract proved and the averments of the declaration. [16] The- declaration alleges that plaintiff’s horse was placed in defendant’s possession, to be agisted for reasonable reward, and that defendant so negligently kept said horse that by such negligence the horse was gored and killed. I. This is a sufficient averment to show the relation of the parties, from which arises a legal duty to take proper care of the horse. It is not necessary in such case to set forth all thé language, in detail in the declaration by which this relation between the parties is proved ; it is enough that the relation is averred, on which defendant’s duty is founded. Nor is it necessary that all the facts alleged in the declaration arey>roved, if sufficient are proved to raise a duty, and a breach of it. Hutchinson v. Granger, 13 Vt. 386. There are certain cases arising from the sale of property with warranty ; in an action for the breach of it, with an alleged scienter, the plaintiff may recover either on the breach of the contract, or for the decit. But in such cases the -recovery is not had for some wrongful act of the defendant after the contract, and for a breach of duty imposed by the contract, but for some fraudulent and wrongful act inducing the contract itself. In such case the contract, which is the gist of the action, must be proved, as laid in the declaration. The basis and distinctions in that class of cases is clearly stated by Phelps, J., in Vail v. Strong, 10 Vt. 457. In the case of the loss of goods, by the negligence of a common carrier, if a suit is brought for a breach, alleging a contract to carry the goods and a loss of them by his negligence, or a non-delivery of the goods as required by the contract, the contract must be proved as laid in the declaration. But if the action is tort-wise, alleging the duty of the defendant to carry and deliver the goods ; and that, by his subsequent negligence, they were injured or lost, there is no duty of alleging or proving any contract; for the action is wholly based on the negligent, fraudulent, or malicious act of the defendant in the discharge of a duty he owed to the plaintiff. And whether that duty arises from some deal, or contract between the parties, or is imposed by law, in an action counting strictly in tort, is not of importance. [17] But it is claimed that the agreement of the defendant to keep the horse in some pasture where he would not be endangered by defendant’s bull, was made important by the charge of the court, and should have been alleged in the declaration. As has heretofore been stated, sufficient is averred to show a bailment of the horse for reward ; and as a matter of law a duty was imposed on the defendant to keep the horse with care and proper attention ; if it was proved that defendant’s bull was accustomed to hook horses, or had manifested that propensity, it would be negligence in defendant to allow plaintiff’s horse to be exposed to the risk of being gored by the bull. So, in this case, if the evidence disclosed that plaintiff believed and informed defendant that there was risk, which he was unwilling to take, in such exposure of the horse to that danger, and defendant agrees to so keep the horse as to avoid that danger, then it was greater negligence in defendant to expose the horse to that risk by which the horse was lost. Lean v. McLean, 48 Vt. 412. II. The plaintiff claims that recovery may be had upon the count in trover. The act complained of in this case was a mere non-feasance. The horse was not appropriated to defendant’s use, nor destroyed by his positive act, but perished by his neglect. In Tinker v. Morrill, 39 Vt. 477, Kellogg, J.,has carefully collated the authorities and defined the proper office and boundaries of the action of trover; and, it would seem that this case is not within its limits; but, as we have disposed of the case on another point, that question is not important. Judgment is affirmed.