Summary
holding that party to whom pony was entrusted under an oral contract of agistment was not liable for pony's death after pony was struck by an automobile because no facts supported a finding of negligence or want of ordinary care
Summary of this case from Scarff Brothers v. Bischer FarmsOpinion
No. 23-76
Opinion Filed October 5, 1976
1. Bailment — Bailments Benefiting Both Parties — Liability for Damage
Person to whom pony had been bailed under contract of agistment whereby he contracted to keep the animal for a monetary consideration was bound to exercise ordinary or reasonable care for the animal's safety, but was not an insurer in absence of a special contract for its safety and in the event of loss was liable only upon proof of negligence or want of ordinary care and diligence.
2. Trial — Questions for Jury
In action for damages for loss due to negligence of defendant, whether defendant was negligent or acted in a wrongful manner was for the court as trier of facts.
3. Negligence — Burden of Proof
In action for damages for loss due to negligence of defendant, plaintiff had burden of proving wrong and injury on defendant's part.
4. Trial — Findings — Scope
In action for damages due to defendant's negligence, judgment for plaintiff would be reversed where findings contained no facts tending to show wrong on defendant's part and no inference from the facts found supported the judgment.
Negligence action. District Court, Unit No. 1, Rutland Circuit, McClallen, J., presiding. Reversed.
Glenn S. Morgan of Ryan, Smith Carbine, Ltd., Rutland, for Plaintiff.
Christopher A. Webber, Jr. of Webber and Costello, Rutland for Defendant.
Present: Barney, C.J., Smith, Daley, Larrow and Billings, JJ.
In a proceeding brought in the small claims court, the plaintiff sought to recover for the loss of a pony which had been bailed to the defendant under an oral contract of agistment. The trial court found the contract of agistment as a fact. It further found that on a fall evening in 1974 the plaintiff's pony was out of the pasture, which was completely enclosed by a fence. While out of the pasture the pony was struck by an automobile and killed. On these findings the court concluded that the defendant failed to use the degree of care required of an agister and awarded $125.00 in damages. The defendant appeals.
The defendant, as an agister who had contracted to keep the animal for a monetary consideration, was bound to exercise reasonable or ordinary care, but in the absence of a special contract for its safety he was not an insurer. In the event of loss, he was liable only on proof of negligence or want of ordinary care and diligence on his part. 4 Am.Jur.2d Animals § 72.
Whether the defendant was negligent or acted in a wrongful manner was a question for the court as the trier of facts. The burden of proof was on the owner of the animal, the plaintiff here, to show wrong and injury done by the agister; the court will not infer it. See Kemp v. Phillips, 55 Vt. 69 (1883). As in Kemp v. Phillips, the lower court's findings in the instant case were "naked of all facts tending to show wrong on the part of the defendant". Id. at 72. Reading the findings separately or collectively, there is no fact or inference to be drawn from the facts as found which supports the conclusion reached by the court.
Judgment reversed.