Copeland v. Draper , 157 Mass. 558 ( 1893 )

Holmes, J.

Horne v. Meakin, 115 Mass. 326, the case relied on by the plaintiff, only decides that, if a party negligently furnishes an unsuitable horse, it is not a defence that he did not know that the horse was unsuitable. In the case at bar, negligence was excluded by the plaintiff’s admission that there was no evidence that the defendant knew, or by the exercise of reasonable care could have known, that the horse was unsuitable, if in fact it was; therefore, in order to recover, the plaintiff must maintain that a livery stable keeper warrants or insures the suitableness of every horse which he lets. 1

No such liability is imposed on him by the fact that he follows a common calling, any more than it is upon every man who keeps a shop. Even in old times, the exercise of a common calling only required a man to show skill in his business. F. N. B. 94 D. Norris v. Staps, Hob. 210, 211. 3 Bl. Com. 164. Rex v. Kilderby, 1 Saund. 311, 312, n. 2. Common carriers were insurers, not because they had a common calling, but because they were bailees, coupled with certain gradual changes in the law not material here. See Brewster v. Warner, 136 Mass. 57, 59.

If it should be sought to charge the defendant for the horse as for a dangerous animal, the liability for a horse on that ground, apart from bailment, is confined to cases where the owner has notice of the dangerous tendency. Commonwealth v. Pierce, 138 Mass. 165, 179. Dickson v. McCoy, 39 N. Y. 400, 403. See also Hawks v. Locke, 139 Mass. 205, 208. The suggestion has been made, following Mr. Justice Story’s statement of the doctrine of Pothier, that bailors for hire generally warrant the suitableness of the thing let. Harrington v. Snyder, 3 Barb. 380, 381. Story, Bailm. §§ 383, 390. But the common law in general applies the principle of caveat emptor when the hirer has examined the article. Cutter v. Hamlen, 147 Mass. 471, 475. See further Hawks v. Locke, ubi supra; McCarthy v. Young, 6 H. & N. 329.

The supposed warranty, if it existed, could not be placed on any of the foregoing considerations, but would have to stand on the analogy of carriers or passengers, taking their liability in, the strictest form in which it ever has been taken. There have been intimations, if not decisions, in favor of such a view with regard to vehicles let for the known purpose of carrying passengers. Jones v. Page, 15 L. T. (N. S.) 619. Leach v. French, 69 Maine, 389, 392. Harrington v. Snyder, 3 Barb. 380. Kissam v. Jones, 56 Hun, 432, 434. Compare Francis v. Cockrell, L. R. 5 Q. B. 501, 503; Fowler v. Lock, L. R. 7 C. P. 272; L. R. 9 C. P. 751, n.; L. R. 10 C. P. 90. But an opposite decision was reached in Hadley v. Cross, 34 Vt. 586, and in this Commonwealth, even, carriers of passengers do not warrant their vehicles, and are not liable, if wholly free from negligence. Ingalls v. Bills, 9 Met. 1. White v. Fitchburg Railroad, 136 Mass. 321, 324. See Readhead v. Midland Railway, L. R. 2 Q. B. 412; L. R. 4 Q. B. 379. It follows, a fortiori, that one who lets a horse does not warrant that it is free from defects which he does not know of, and could not have discovered by the exercise of due care. See Story, Bailm. § 391 a; Edwards, Bailm. § 373.

Judgment on the verdict.