Conn v. Hunsberger

• Decision Date: 22 March 1909
• Docket Number: 231
• Citation: 73 A. 324,224 Pa. 154
• Parties: Conn, Appellant, v. Hunsberger
• Court: Pennsylvania Supreme Court

73 A. 324

224 Pa. 154

Conn, Appellant, v. Hunsberger

No. 231

Supreme Court of Pennsylvania

March 22, 1909

Argued January 8, 1909

Appeal, No. 231, Jan. T., 1908, by plaintiff, from judgment of C.P. No. 4, Phila. Co., March T., 1907, No. 3,673, on verdict for defendant in case of Charles O. Conn v. Harry K Hunsberger. Reversed.

Trespass against a livery-stable keeper to recover damages for personal injuries caused by the vicious conduct of a horse. Before AUDENRIED, J.

The facts appear by the opinion of the Supreme Court.

At the trial the court gave binding instructions for defendant.

Verdict and judgment for defendant. Plaintiff appealed.

Error assigned was in giving binding instructions for defendant.

The judgment is reversed with a venire facias de novo.

Louis Goodfriend, for appellant. -- A livery-stable keeper who lets a horse for hire for a trip impliedly promises that the horse is a kind and suitable one for the purpose for which he is let, and not vicious, nor in the habit of kicking: Windle v. Jordan, 75 Me. 149; Horne v. Meakin, 115 Mass. 326; Kissam v. Jones, 56 Hun (N.Y.) 432; Payne v. Halstead, 44 Ill.App. 97; Benner Livery & Co. v. Busson, 58 Ill.App. 17; Siegrist v. Arnot, 86 Mo. 200.

The only reported case in Pennsylvania at all pertinent to the question involved is Miller v. Moyer, 24 Pa. C.C. Rep. 259.

Edwin M. Abbott, for appellee. -- The plaintiff must prove the scienter, i.e., that the defendant had knowledge that the horse was dangerous and vicious and unsuitable for the bailment purpose: Horne v. Meakin, 115 Mass. 326; Copeland v. Draper, 157 Mass. 558 (32 N.E. Repr. 944); Lynch v. Richardson, 163 Mass. 160 (39 N.E. Repr. 801); Windle v. Jordan, 75 Me. 149; Blanchard v. Weeks, 34 Vt. 589; Bradley v. Myers, 19 Lanc. L.R. 137; McConnell v. Lloyd, 9 Pa. Superior Ct. 25; P. & R.R.R. Co v. Hummell, 44 Pa. 375; P. & R.R.R. Co. v. Spearen, 47 Pa. 300; Cresey v. Railroad Co., 26 Legal Int. 301; Fouhy v. Railroad Co., 17 W.N.C. 177; Ogden v. Railroad Co., 23 W.N.C. 191; Shvagzdys v. Railroad Co., 48 Pitts. L.J. 136.

There is no warranty, express or implied, where a liveryman hires out a horse, that the same is gentle, docile or will not run away: Copeland v. Draper, 157 Mass. 558 (32 N.E. Repr. 944).

Recovery in damages cannot be had where the mere breach of this warranty occurred innocently: Jones v. Ross, 98 Ala. 448 (13 So. Repr. 319); Case v. Stevens, 137 Mass. 551; Bruce v. Fiss, etc., Horse Co., 47 A.D. 273.

Before MITCHELL, C.J., FELL, BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.

OPINION

MR. JUSTICE MESTREZAT:

This is an action of trespass to recover damages for injuries caused by the vicious acts of a horse. The defendant is a livery-stable keeper in the city of Philadelphia, and for several months prior to November 12, 1906, the plaintiff had hired of him a horse to be used for drawing a delivery wagon about the city. On the morning of the day mentioned, the plaintiff went to the defendant's stable and obtained a mare to drive in his wagon during the day. This mare was different from the one which he had previously hired and used in his business, the defendant having purchased her that morning. The plaintiff testified that the defendant knew the purpose for which the mare was hired, that he recommended her very highly and that she was safe and suitable for the purpose; and that he had purchased her especially for the plaintiff's use. The plaintiff was familiar with and had been driving horses for twenty-five years.

The mare was harnessed to a light wagon and the plaintiff started on his drive about the city. Within half an hour after the animal was hired she suddenly, without any apparent cause, started to kick violently and finally ran off. She kicked the dashboard off, hit plaintiff above the eye, and kicked the seat from under the plaintiff. While she was running, the wagon violently struck a truck standing on the street, broke the front axle at the hub and threw the plaintiff out. He was knocked unconscious and was severely injured.

This action was brought to recover damages for the injuries which the plaintiff sustained. On the trial of the cause the above facts were made to appear; and witnesses were also called who testified that the conduct of the mare on the occasion of the accident showed that she was not mild, kind and gentle, but was wild and vicious, and that a gentle horse would not act as she did.

These witnesses were owners of horses and knew their habits, traits and dispositions. The learned judge directed the jury to find a verdict for the defendant on the ground that there was "no evidence that the defendant knew or by the exercise of reasonable care could have known that the mare was unsuitable for use, if in fact she was so." The plaintiff has taken this appeal.

The relation between a livery-stable keeper and his customer is that of bailor and bailee for hire, and the former assumes the liability which the contract of bailment imposes. When the bailor lets a horse for hire he impliedly promises or warrants that the animal is fit and suitable for the purpose for which it is hired; he warrants that the horse is not unruly or vicious but is safe, manageable and suitable for the use for which the customer has hired it. It is the duty of a livery-stable keeper to inform himself of the habits and disposition of the horses which he keeps in his stable for hire, and if he knows that they are dangerous and unsuitable or by the exercise of reasonable care could ascertain the fact he is liable for any injuries to his customers resulting from their vicious propensities. The law will not permit him to close his eyes and his ears, thereby remaining ignorant of the vicious habits of his horses, and relieve him from liability for injuries to a customer resulting from such habits. In his contract of hiring he impliedly engages that he knows or has exercised reasonable care to ascertain the habits of his horses, and says to his customer that the horse which he lets is safe and suitable for the purpose for which he has hired it. His warranty is against defects or vicious habits which he knows or by the exercise of proper care could know, and if he fails to exercise such care and it occasions injury to his customer he will not be relieved of liability though he did not actually know the horse was unsuitable for the service. It is true a liveryman is not an insurer of the suitableness of a horse or carriage let to a customer, but he is bound to exercise the care of a reasonably prudent man to furnish a horse or carriage that is fit and suitable for the purpose contemplated in the hiring. The customer is at his mercy and must rely upon the liveryman to guard him against the danger of a vicious animal or defective vehicle; and hence he has the right to demand of the liveryman that he will use such care in supplying a horse or carriage as a reasonably prudent man exercises in the conduct of his own business affairs. While this court has not passed upon the question, the doctrine here announced is recognized and applied in other jurisdictions: 25 Cyclopedia of Law and Procedure 1513; 19 Am. and Eng. Ency. of Law (2d ed.) 432; Edwards on Bailments, sec. 373; Fowler v. Lock, L.R. 7 C.P. 272; 10 C.P. 90; Horne v. Meakin, 115 Mass. 326; Lynch v. Richardson (Mass.), 47 Am. St. Rep. 444; Windle v. Jordan, 75 Me. 149; Stanley v. Steele (Conn.), 69 L.R.A. 561; Nisbet v. Wells (Ky.), 76 S.W. Repr. 120. In Lynch v. Richardson, Mr. Justice KNOWLTON, delivering the opinion, said: "It was the duty of the defendant to furnish a horse that had no such vicious habit, and if he knew of the existence of the habit, or if, by the exercise of reasonable care to ascertain whether the horse was suitable for the use of hirers, he ought to have known that it was dangerous, he is liable for such injuries as resulted from his wrongful conduct. . . . It was the duty of the defendant to try to inform himself in regard to the habits of horses kept in his stable for use in his business. It does not require a very...