W. J. Cameron Et Ux. v. Emile Bissonette Et Ux

• Decision Date: 05 November 1930
• Citation: 152 A. 87,103 Vt. 93
• Parties: W. J. CAMERON ET UX. v. EMILE BISSONETTE ET UX
• Court: Vermont Supreme Court

152 A. 87

103 Vt. 93

W. J. CAMERON ET UX. v. EMILE BISSONETTE ET UX

Supreme Court of Vermont

November 5, 1930

October Term, 1930.

Bailment---Obligations of Gratuitous Bailees---Negligence---Proximate Cause---Animals.

1. Gratuitous bailees are bound to exercise high or extraordinary degree of care and diligence.

2. In absence of special contract, gratuitous bailees are not insurers of subject of bailment and are only liable for such loss or damage as results from their negligence.

3. Negligence to be actionable must be proximate cause of injury for which compensation is sought.

4. When negligence is established, liability attaches for all injurious consequences that flow therefrom until diverted by intervention of some efficient cause that makes injury its own, or until force set in motion by negligent act has so far spent itself as to be too small for law's notice.

5. Where gratuitous bailees of mare, on farm having barn in which she could be kept, left her in pasture on cold and rainy night, and following morning she was found dead in brook in pasture, depth of brook then being from four to five feet although normal depth was about two feet, held that, if negligence of defendants in leaving mare in pasture were established, such negligence was proximate cause of her death in brook.

ACTION OF TORT for claimed negligence of gratuitous bailees. Plea general issue. Trial by jury at the March Term, 1929 Chittenden County, Thompson, J., presiding. At close of all evidence, court directed verdict for the defendants. The plaintiffs excepted. The opinion states the case.

Judgment reversed, and cause remanded.

Latham & Latham for the plaintiffs.

Present POWERS, C. J., SLACK, ^[1] MOULTON, and WILLCOX, JJ.

OPINION

SLACK

The action is case to recover the value of a mare that belonged to the plaintiffs and was found dead in a brook while in the possession of the defendants. Trial was by jury. At the close of all the evidence the court directed a verdict for the defendants, to which the plaintiffs excepted.

It appeared, without dispute, that on October 3, 1928, the plaintiffs purchased from the defendants a farm on which the latter then resided and certain live stock, including the mare in question; that the defendants were to have time (how long did not appear) in which to move off the farm, and were to have the mare, without charge, to use in moving; that there was a barn on the farm in which she could have been kept, but that she was left in the pasture the day and night of October 18, when it was cold and rainy, and the following morning was found dead in a brook in said pasture; that the normal depth of the water in this brook is about two feet, and that its depth at the time the mare was found therein was from four to five feet.

The plaintiffs contend that the defendants were gratuitous bailees of the mare, since the bailment was for their sole benefit. This is not questioned by the defendants, so we treat that as an established fact.

The plaintiffs further contend that as such bailees the defendants were bound to exercise a high or extraordinary degree of care and diligence in caring for the mare. This is true. Schouler in his 1905 edition on Bailments, at page 28, in speaking of this class of bailees, says: "The bailee is bound to exercise what is called great, or more than ordinary diligence, and to respond for every loss which is caused by even slight negligence on his part." To the same effect are Elliott on Bailments (2nd ed.) par. 40, and Story on Bailments (9th ed.) par. 237. In the absence of a special contract, however, such bailees are not insurers of the subject of the bailment, and are only liable for such loss or damage as results from their negligence.

The question is whether the death of the mare was due to even the slight negligence of the defendants. The negligence charged in the declaration is that she was left in the pasture, in the rain and cold, the day and night of October 18, and by reason thereof became hungry, numb and cold, and lost her way and fell into a swollen brook and was killed.

There is no evidence that because of the condition of the weather on the day and night of October 18 the mare became hungry, or numb, or cold, or lost her way, but the fact that she fell into the brook and was drowned was not disputed.

The evidence regarding the condition of the weather on the day and night of October 18 was such as to entitle the plaintiffs to go to the jury on the question of whether the defendants exercised the care and diligence required of them in leaving the mare in the pasture at that time. But unless it can be said, in the circumstances, that such negligence, if found was the proximate cause of the mare's death the action of the court in directing a verdict...