Partridge v. Cole

Taylor, J. The action is tort, for damages occasioned by the alleged neglect of certain live stock owned by the plaintiff [283] and kept on a farm occupied and carried on by tbe defendant as a tenant. After alleging the duty of tbe defendant with respect to tbe live stock, tbe complaint charges: 4 4 Tbe defendant failed in said duty in tbis, to wit, that be wilfully, maliciously and negligently failed and neglected to properly feed and care for tbe livestock upon said farm; that be failed to milk the cows at proper and regular hours; that be failed to water tbe stock at proper and regular hours; that be failed to breed said cows; and otherwise managed tbe live stock upon said farm in a negligent, careless, imprudent and unbusbandlike manner. ’ ’ Tbe trial was by jury. At the close of plaintiff’s evidence tbe defendant moved for a directed verdict on two grounds briefly stated: (1) Plaintiff’s evidence does not show tbe commission of any tort on tbe part of tbe defendant. (2) Tbe evidence does not support tbe allegation that tbe defendant wilfully, maliciously and negligently failed to feed and care for tbe live stock on tbe farm,- etc. Tbe court sustained tbe motion and directed a verdict for tbe defendant. Tbe only question presented for review is raised by tbe exception taken to tbis action. Evidently tbe court’s ruling was based upon tbe latter ground of tbe motion. Tbe case is unusual in that tbe complaint charges, purposely it would seem, that the defendant’s neglect in tbe care of tbe live stock was wilful and malicious. Plaintiff contends that the evidence supports tbe charge as laid and seeks a reversal on that ground. There was evidence in the view most favorable to tbe plaintiff tending to show tbe following facts: Tbe defendant was a farmer of experience, thirty-three years of age. Tbe plaintiff lived in Strafford, Vermont, and owned the farm in question, situated in Pomfret. Tbe live stock on tbe farm consisted of cows, horses, bogs, and poultry. The stock included a valuable herd of registered Holsteins and some thoroughbred bogs. Tbe defendant bad carried on tbe farm'for tbe plaintiff as manager from April 1, 1918, to June 1, 1920, living thereon with his family. On tbe latter date be became tenant- of tbe farm with tbe live stock and as such bad tbe entire charge and management thereof until December 1, 1920. About tbe middle of October tbe parties became involved in litigation respecting the tenancy. Tbe matter was adjusted some time in November, tbe defendant agreeing to vacate tbe premises on December 1. The relations of tbe parties continued to be un [284] friendly after the settlement. A large part of the evidence related to the condition of the live stock when the plaintiff regained possession on December 1. Without going into detail it is enough to say that the evidence would have fully warranted the jury in finding that some of the animals at least had been grossly illtreated. It tended to show that • they had been “starved,” that they had become “emaciated,” that they were “mere skeletons”; that some were so weak they were “hardly able to walk”; and that one cow died soon after as a result of the treatment. The evidence was that during the summer and early fall before trouble arose between the parties the live stock was in good condition. There was no direct evidence of illtreatment by the defendant; but it appeared that he had personal charge of the live stock and directed its care and keeping; that he lived on the premises and was fully aware of the condition of the stock; and that there was proper shelter and ample food on the farm for the stock during all the time the defendant had charge of it as tenant. During the tenancy the defendant was bailee of the live stock for hire. Shortsleeves v. Troville, 95 Vt. 468, 117 Atl. 819. As such he owed the plaintiff the duty of exercising ordinary care in its management. The first ground of the motion is argued in support of the court’s ruling, but it is manifest that the judgment cannot be sustained on that ground. The evidence would have fully justified the jury in finding that the condition of the live stock on December 1 was the direct result of the defendant’s neglect in feeding and caring for it. So much at least could fairly and reasonably be inferred from the facts proved. The point is. made that the condition of the animals might have been attributable to agencies entirely beyond the control of the defendant, such as sickness, disease, etc. It is not claimed that there was any evidence tending to support such a theory, but it is argued that to find the defendant guilty of negligence the jury would have to speculate as to the cause of the condition of the stock. However, there was evidence tending to show that the condition was due to lack of food and care. Respecting the cow that died, the testimony was that there was no apparent trouble with her except starvation; while it was shown that with proper care and feeding all the other animals steadily improved in condition. Besides, the evidence to the effect that the animals [285] were healthy a short time before has a bearing npon the question. The condition shown to exist so shortly before the time in question will be presumed to continue in the absence of evidence to the contrary. Lewis v. Brainerd, 53 Vt. 510; State, ex rel. Phelps v. Jackson, 79 Vt. 504, 65 Atl. 657, 8 L. R. A. (N. S.) 1245; 1 Jones on Ev. § 58a; 1 Wig. on Ev. § 225. The important question in the case is whether the evidence, would support a-finding that defendant’s neglect to feed and care for the live stock was wilful and malicious. The term “wilful” as here employed means no more than intentional; while the malice contemplated is such-as is involved in the intentional doing of a wrongful act, in disregard of what one knows to be his duty to the injury of another. Wellman v. Mead, 93 Vt. 322, 339, 107 Atl. 396; In re Cote, 93 Vt. 10, 14, 106 Atl. 519. It does not require proof of special malice to support the allegation, though the malice must have relation to the very matter complained of (Moore v. Duke, 84 Vt. 401, 408, 80 Atl. 194); but it may be implied from a wrongful act done intentionally without just cause or excuse. In disposing of a motion for a directed verdict on the ground of want of evidence where the fact is one to be inferred from' the circumstances, the question is not what inference the court would draw from the facts proved, but whether the jury might reasonably draw the necessary inference therefrom. Where intelligent and fair-minded men may reasonably differ in the conclusion to be drawn, it cannot be said as matter of law that there is no evidence to support the inference. It is then a question of fact for the jury. Boyden v. Fitchburg R. Co., 72 Vt. 89, 95, 47 Atl. 409. The character of the evidence in a civil action such as will justify a finding that conduct is wilful and malicious is illustrated by the cases where the question has arisen as to the sufficiency of the evidence to warrant a finding that the cause of action arose from the wilful and malicious act of the defendant, or for wilful and malicious injuries to the person and property of the plaintiff, as a basis for a close jail execution. Among such cases are Larrow v. Martell, 92 Vt. 435, 104 Atl. 826; Wellman v. Mead, 93 Vt. 322, 338, 107 Atl. 396; Bombardier v. Goodrich, 94 Vt. 208, 110 Atl. 11, 9 A. L. R. 1028. In determining the sufficiency of the evidence in this case the plaintiff is aided by the presumption, indulged in civil [286] actions, that an intelligent person intends the natural consequences of his act. In re Cote, supra. It must be held that the .evidence properly considered afforded a sufficient basis for a finding that the defendant neglected to feed and care for the live stock properly and that such failure was in law wilful and malicious. It was shown that the defendant was experienced in the handling of live stock; was able to give it the attention required; and was at all times in a position to comprehend fully the consequences of the neglect shown, which on the evidence was wholly without cause or excuse. It follows that the court erred in taking the case from the jury. Reversed and remanded.