Bell v. Leslie

I. Hall, J. The mare, “Mollie Hubbard,” was not-in the possession or under the control of the defendant. Creson had full control of the mare, Meyers was the-servant of Creson. He was not the servant of the defendant. The defendant was, therefore, not liable-on account of any negligence on the part of Meyers-in the management of the mare. No cause of action was proved under the second count of the petition. As to that count there was a total failure of proof.. The-burden of proving the relation of master and servant between the defendant and Meyers rested on the plaintiff. There was no presumption in favor of the existence of such relation simply from the fact that Meyers was-handling and managing the mare, of which the defendant was the -general owner. It was necessary for the plaintiff to at least prove, in order to create such a presumption, that Meyers was acting for the defendant. II. Admitting, for the purpose of argument only, that668 the defendant could on any ground be held liable fox the injury inflicted by his mare to the plaintiff’s horse, while said mare was in charge of Creson or Creson’s servant, when the defendant had given the absolute control and right to the possession and management of the mare to Creson for the racing season; it must be conceded that the defendant could only be liable on one ground. That ground is, that the mare was unsafe and dangerous for the purposes for which the defendant gave her to Creson, even if she should be managed with care and prudence. If the mare could have been used for said purposes with safety, by the use of care and prudence, surely the defendant was not liable to a third person for having let her to Creson for such purposes. The defendant’s liability may well be doubted. The rule on this subject has been thus illustrated: Thus, “if a horse of vicious habits should be stolen, or even wrongfully taken under a claim of title, the person thus taking it, and «not the real owner, would be liable to third persons as its owner while it remained in his possession. So if an animal is hired out, and even, we think, if it is simply lent, for such a time and in such a manner as to give the hirer or borrower exclusive control over it, he and not the ultimate owner, is liable in like manner.” Shear. & Red. on Neg., sect. 195. It is not contended that a race horse is, from its nature, dangerous and unfit for the purposes of racing, when managed with care and prudence. No such case is alleged or proved. If the mare was unsafe and dangerous for such purposes it was by reason of a vicious disposition peculiar to herself. The burden of proving such vicious disposition and the knowledge thereof by the defendant rested upon the plaintiff. It is clear that, although the mare may have been vicious in certain respects, still the defendant was not liable unless the injury complained of was occasioned by such viciousness. It is equally clear that the injury was caused by no viciousness on the part of the mare [669] except the vicious disposition to run away, if indeed the mare had such a disposition. Even if it be conceded that the disposition of the mare, “in starting in a race, to refuse to go, to pull back or go the wrong way until she got the best of it,” was a vicious disposition, such disposition had nothing to do with causing the injury. Lid the mare have a disposition to run away ? As we have said, it devolved upon the plaintiff to prove such disposition. The only evidence introduced by the plaintiff touching the mare’s disposition was the testimony of the plaintiff that the mare was “unruly.” In what respect the mare was “unruly” the plaintiff did not state. He simply made the bald statement that the mare was “unruly.” The mare might have been “unruly” in starting in a race, as testified by witnesses for the defendant, or in many other respects, having nothing to do with causing the injury to plaintiff’s horse. It devolved upon the plaintiff to prove that the mare was “unruly,” in that she was disposed to run away, because the accident was caused by the mare running away. To prove that, the plaintiff’s testimony had no tendency. The only other evidence bearing upon this question was the testimony of the rider, Meyers, to the effect that the mare had once before started to run with him, and that he soon got her under control. That testimony was not, alone, sufficient to prove that the mare, a race horse, was disposed to run away. And besides, that attempt on the part of the mare was made only a few days before the accident in suit, and long after the defendant had parted with the control of the mare ; such testimony was not sufficient to prove that the mare was disposed to run away at the time the defendant so parted with her. There was, in our opinion, a failure of proof on the question. But however that may be, it is certain that there was a total and absolute failure of proof as to the knowledge of the defendant, up to the time of the accident, that the mare was disposed to. run away, or was in any [670] way uncontrollable except in starting in a race, as heretofore explained. Proof of such knowledge had by the defendant was absolutely necessary to the right of recovery by the plaintiff. The rule upon this subject has been thus stated: “ Owners are liable for the hurt done by the animal even without notice of the propensity, if the animal is naturally'mischievous, but if it is of a tame nature, there must be notice of the vicious habit. Mason v. Keeling, 12 Mod. Rep. 332; Rex v. Huggins, 2 Ld. Raym. 1574.” Spring Co. v. Edgar, 99 U. S. 654; see also Moak’s Underhill on Torts, (1 Amer. Ed.) page 294; Cooley on Torts, pages 342, 344; 1 Thomp. on Neg. p. 201, sect. 15; Wharton on Neg., sects. 922 and 923; Shearman & Red. on Neg. sect. 188. The language used by the court in Spring Co. v. Edgar (99 U. S. supra) ajiplies with peculiar appropriateness to the facts of this case. The court said : “Domestic animals, such as oxen or horses, may injure the person or property of another, but courts of justice invariably hold that if they are rightfully in the place where the injury is inflicted the owner of the animal is not liable for such an injury, unless he knew that the animal was accustomed to be vicious ; and in suits for such injuries such knowledge must be alleged and proved, as the cause of action arises for the keeping of the animal after the knowledge of its vicious propensity.” There was, therefore, a total failure of proof as to the first count of the petition. It follows that the judgment of the circuit court is reversed. All concur.