Scottish Court of Session Decisions

At advising—

Lord Justice-Clerk—This case comes within the category of loan, in which very narrow questions have frequently occurred. The law is sufficiently fixed by a series of authorities, to which the Sheriff-Substitute refers—[ reads note ut supra].

In the case of Robertson v. Ogle ( 15 F.C. 348) a person hiring a serviceable horse and returning him useless was found liable for his value, and it was held that the proprietor of the horse was not obliged to prove actual maltreatment when out of his possession. It was however stated that this did not affect the ordinary rule res perit domino. This case then laid down that although the risk remained with the owner, it fell upon the hirer (1) to prove the cause of the injury, and (2) to adduce at least prima facie evidence that all due care was taken. The opinion of Lord Cowan in the case of Pullars, 20 D. p. 1245, puts the matter beyond question—“Fortunately the parties are here at one as regards the degree of diligence which applies to this case. It is that degree of diligence which applies to the hirer in the case of a contract of location. I think that a reasonable view. In this case therefore, as in all such cases, the hirer must show the cause of death, and that he is blameless. Now, has this onus been fully satisfied? Have the pursuers shown that the cause of death was not one for which they were responsible? They have proved the disease of which the horse died, but they have not shown that for the probable cause of the disease they are not responsible. The principle which ruled the early case of Binny (M. 10,079) and the recent case of Robertson v. Ogle makes it incumbent on the pursuers to establish satisfactorily that they are blameless as regards the death. The question in this view is to be determined on the inference to be deduced from the whole circumstances in evidence, and a very little may turn the scale.”

I therefore assume that the hirer here was bound (1) to show the cause of injury from which the horse died, and (2) that it was a cause for which he was not responsible. I am of opinion that he has not done so, and I think therefore that upon the hirer must fall the loss, and that the Sheriff was right.

Lord Ormidale concurred.

Lord Gifford—This is a difficult case both upon the evidence and upon the legal question as to the onus of proof. There is no direct evidence how the horse got the injury on its shoulder—nothing but inference or conjecture—and the question is, who is to bear the loss? On the one hand, it was the property of the pursuer, and unless some blame attaches somewhere the general rule is res perit domino. On the other hand, I think it is sufficiently proved that the injury which caused its death must have been received subsequent to the date of its delivery to the defender, and looking to the nature of that injury and its very serious character and extent, I think a heavy onus lay upon the defender, its custodier, to show or explain how the injury was sustained, or how it might have been sustained, without any fault on his part or on the part of those for whom he is responsible.

The defender alone was custodier of the animal. It was under his entire control during the day and in his stables at night. It lay upon him or his servants to feed it and to attend to it in every way. The pursuer was not near it, had no charge of it, and had no means of tracing or observing its treatment. In these circumstances I think it lay upon the defender to do a great deal more than merely to say—I cannot tell how the injury was received, but it was not owing to any fault in me or in my servants. The animal may have injured itself in the stable—I cannot tell how—but there are my servants, everyone of whom exoners himself of blame.

So standing the case, I think that the Sheriffs have taken the right view in holding that the defender in the absence of other evidence must be held responsible. He has not sufficiently discharged himself of the duty and onus which lay upon him, and which lies upon all parties who under a contract of hiring or of any other kind get the entire use, custody, and control of another person's property. If the property is found broken or destroyed, the custodier cannot content himself without explanation by a mere plea that he was not to blame.

If a conjecture is to be hazarded, I think that of the pursuer's counsel is as likely as any—that the animal got loose in the defender's stable on the Saturday before its death; that sometime on the Saturday night it had been kicked on the shoulder by some of the other horses in the stable; and that it was found so injured, as the defender himself tells us, at 4 o'clock on Sunday morning; he then saw the shoulder swelled. But if this happened, there must have been fault on the part of the defender or his servants as to the tying up of the horses, and the evidence is a blank as to this. It is remarkable that the defender himself does not say that he found the horses, including this one, all properly tied up when he went in at 4 o'clock on the Sunday morning. I should have liked to know what took him to the stable so early long before it was light.

On the whole I am satisfied with the judgment of the Sheriffs.