Herbert v. Ziegler

• Court: Maryland Supreme Court
• Writing for the Court: Before BRUNE; HAMMOND
• Citation: Herbert v. Ziegler, 216 Md. 212, 139 A.2d 699 (Md. 1958)
• Decision Date: 27 March 1958
• Docket Number: No. 188,188
• Parties: Carroll L. HERBERT v. William J. ZIEGLER.

Page 212

216 Md. 212

139 A.2d 699

Carroll L. HERBERT v. William J. ZIEGLER.

No. 188.

Court of Appeals of Maryland.

March 27, 1958.

Claude A. Hanley and Charles J. Hessian, Towson, for appellant.

John R. Cicero and W. Thomas Gisriel, Baltimore, for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HAMMOND, Judge.

The owner of a riding academy, one Herbert, against whom a patron who had been thrown from a rented horse obtained a judgment, seeks reversal because the trial court erred in refusing to direct a verdict for him and in denying him a judgment notwithstanding the verdict.

On a Sunday morning in July, one Ziegler, with his eleven year old son, went to the riding stable to hire two saddle horses. They were greeted by a young man fourteen to sixteen years of age named Bob Patterson. Ziegler asked Patterson for two of the gentlest horses. The tack room was locked, and the key was brought by Herbert's fourteen year old son. Patterson saddled two horses with the help of young Herbert and gave Ziegler a horse named 'Chubby', and Ziegler's son a horse named 'Raven'. Patterson helped Ziegler mount Chubby, adjusted the stirrups, took hold of the reins, pulling them tight in back of the horse's neck so that Ziegler could not hold them, and began to lead the horse towards the bridle path. Almost immediately the left stirrup slipped and Patterson stopped the horse and was about to adjust the stirrup when a Dalmatian dog called 'Poppy', belonging to Mrs. Herbert, came running at Chubby's legs, growling and barking. Chubby shied or bolted to the left, and Ziegler was thrown off to the right. He landed on his back, and with his right foot still in the stirrup was dragged fifteen to twenty-five feet. A little later he remounted and rode for a short time so as not to disappoint his son, and then came back, paid Patterson for the horses and went to a hospital where it was discovered that his twelfth thoracic vertebra was fractured. The jury gave him a substantial verdict for his expenses, his suffering and his permanent partial disability.

There is no dispute that Herbert, as a business, invited the public to come and pay to ride the horses he kept; that the Dalmatian dog had been bought by him and given to his wife some three years before; that the dog was allowed to run loose and to stay in the barn with the horses; that Chubby was generally a kind, tractable horse, often ridden by children; and that he had been used regularly at the riding academy for more than a year when the accident occurred.

Ziegler proved that Patterson had rented a horse to a patron several months before the accident, and that in the week that followed another rider had rented a horse from Patterson. No real effort was made by Herbert to deny that Patterson was his agent, and in the opinion denying the motion for judgment n. o. v., the trial court said: 'There seems to be no doubt, and it is conceded by counsel, that the Patterson boy was an agent of the Defendant at the time of the accident and was acting in the course of his employment.'

Ziegler's son testified that young Herbert had released Raven, which he had been leading, and was facing away from the scene until his attention was attracted to Ziegler on the ground, and that then he asked Patterson what had happened and Patterson replied: 'Poppy scared Chubby again.'

Ziegler was clearly an invitee, a business visitor, to whom Herbert owed the duty of exercising ordinary and reasonable care commensurate with the environment and circumstances involved. May Co. v. Drury, 160 Md. 143, 153 A. 61; Beverly Beach Club v. Marron, 172 Md. 471, 192 A. 278; Glaze v. Benson, 205 Md. 26, 106 A.2d 124; Austin v. Buettner, 211 Md. 61, 124 A.2d 793. Ordinary and reasonable care in the conduct of a riding academy must necessarily include the furnishing of horses that do not have habits, traits or propensities likely to result in injury to their riders.

The Supreme Judicial Court of Massachusetts, in holding liable to one injured the owner of a horse that had a propensity to run away when started for home, put the matter succinctly in Lynch v. Richardson, 163 Mass. 160, 39 N.E. 801, when it said: '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.' For essentially the same holdings, see Palmquist v. Mercer, 43 Cal.2d 92, 272 P.2d 26, 30; Evans v. Upmier, 235 Iowa 35, 16 N.W.2d 6. To hold liable the owner of a domestic animal that has caused injury, the claimant must show that the owner knew, or by the exercise of ordinary and reasonable care should have known, of the inclination or propensity of the animal to do...