Wilensky v. Martin
| Decision Date | 09 April 1908 |
| Docket Number | (No. 977.) |
| Citation | 60 S.E. 1074,4 Ga.App. 187 |
| Parties | WILENSKY . v. O. C. & H. E. MARTIN. |
| Court | Georgia Court of Appeals |
Agistment is a species of bailment, and the agistor must exercise the ordinary care of a prudent man as to animals placed in his care. An agistor is liable for his own negligence and for the negligence of his servants; but he is not an insurer. In the absence of a special contract, he is only bound to exercise such care as a man of ordinary prudence would use under the same circumstances towards his own property.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 2, Animals, §§ 43, 44.]
The question as to whether an agistor is or is not negligent is one of fact and for the determination of the jury, and, in cases of agistment, the jury have the right to take into consideration the usages and customs prevailing upon the subject, and also the traits, qualities, and characteristics of the animals being pastured, as well as the fact that the negligence of the owner may, more or less, have contributed to the injury of which complaint is made.
(Syllabus by the Court.)
Error from Superior Court, Chatham County; Geo. T. Cann, Judge.
Action by M. Wilensky against O. C. & H. E. Martin. Verdict for defendants. From an order overruling a certiorari, plaintiff brings error. Affirmed.
Win. H. Boyd, for plaintiff in error.
Wilson & Rogers and R. L. Colding, for defendants in error.
The plaintiff placed his horse in the pasture of the defendants as agistors. The horse was blind and fell into an uncovered well in the defendants' pasture, and was killed. A suit was brought to recover the value of the horse, which the agistors refused to pay, relying upon the fact that they informed the agent of the owner of the horse when they received the animal that there were at least a dozen places in the pasture where a blind horse might be killed. The jury returned a verdict for the defendants, and the plaintiff certioraried, and ex ception is taken to the order of the judge of the superior court overruling the certiorari. We find no error in the judgment of the court overruling the certiorari and entering judgment for costs against the plaintiff in error. We will first consider the general nature of a contract of agistment, and then inquire whether the liability of the bailee in such a contract of bailment may be limited by the express terms of the special contract, and, next, whether the jury were authorized to find, in the present instance, that the defendants were not liable, either because the special terms of the contract had been complied with, or because, under the particular circumstances of the case, the plaintiff himself took the risk of the conditions which surrounded his animal, and which were the cause of its death.
1. Agistment is one species of bailment, and ordinarily the prudent agistor must exercise the same care towards animals placed in his charge as towards his own property. The same golden rule of diligence to which we have referred in Haines v. Chappell, 1 Ga. App. 480, 58 S. E. 220, and Morris Storage Co. v. Wilkes, 1 Ga. App. 751, 58 S. E. 232, applies to the agistor (in the absence of a contract limiting his liability) as applies to other bailees. An agistor is liable for his own negligence, and for the negligence of his servants. He has been held to be liable for turning an animal into a field where another vicious animal was at large, and for allowing strangers to enter his stable at night so that horses escaped and were lost; for leaving his fences down, by reason of which cattle strayed away and were stolen; and also for damage due to his negligence in the communication of contagious diseases, as well as for failure to provide suitable pasture. But an agistor is not, like an innkeeper or carrier, an insurer. In the absence of a special contract, he is only bound to exercise ordinary and reasonable care, such care as a man of ordinary prudence would use under the same circumstances towards his own property. In many jurisdictions it is held that one who claims that he has been damaged by the negligence of an agistor must establish that fact. Story on Bailments, §§ 213-278, 454; Calland v. Nichols, 30 Neb. 532, 46 N. W. 631; Dennis v. Huyck, 48 Mich. 622, 12 N. W. 878, 42 Am. Rep. 479; Rey v. Toney, 24 Mo. 600, 69 Am. Dec. 444. Other authorities hold that, where loss is shown, the burden is upon the agistor to relieve himself by proof that it was not occasioned by his negligence. In Georgia, by the provisions of Civ. Code 1895. § 2896, the burden of proof is upon the bailee, when loss has been shown, to show proper diligence. In the present case the plaintiff sent a horse, practically blind, to the defendants to be pastured. The horse was sent by the plaintiff's agent and servant. Prior to the sending the plaintiff...
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