“Beer for my Horses”, Toby Keith with Willi Nelson once sang, but this article is not about that but hay for breeding horses. A visitor fed hay to a pregnant mare after which the horse died. OLG Karlsruhe passed a judgment in this matter on January 17, 2008 (re 12 U 73/07) to determine who is responsible for the damages.

[PPD_PAYTOREADMORE]

The plaintiff owns a riding school and on these premises is a house rented out to persons. The defendant wanted to visit his sister who lives in that house. Since his sister was coming later, he went to the barn to kill the time until her arrival. He entered the barn and fed a pregnant mare. It came as it had to come. The horse went sick and died as well as the unborn pony.

The plaintiff alleged to put up signs instructing not to feed the horse but he could not later prove this in court. He further argues, it is generally known that other person’s animals are not to be fed. He wants approx. T€ 14 for the mare and another T€ 7 for the unborn pony. Further, € 10 for disposure of the carcass, € 800 costs for mating, purchase price for the mare of T€ 14.7. He argued his mare to be very precious because it was trained for dressage riding.

The defendant disagreed. It can not be expected from anybody not frequently dealing with horses that were not to eat hay. Anybody else could have also fed the horses so that his feeding is not necessarily causal. He has no relationship to horses. He denies that there were “no feeding sings” in the barn. Everything else he also denied.

The plaintiff has grounds for damages from §823 I BGB (torts – unerlaubte Handlungen). The veterinarian proved with her expertise to the persuasion of the court that the hay was the reason for the death of the horses. Feeding the horses is an illegal interference with the plaintiff’s property without the defendant having a plea of justification

The feeding is also casual for their death because under common and not only unusual circumstances. The defendant also acted negligently. Such is the case when a person disregards the reasonable and relevant care in a certain situation (§276 II BGB). Expected is that the offender recognizes a danger and possible damages. Both is here the case. The defendant did not know anything about horses and their care, therefore he had to forbear feeding the horses. Moreover, it would and must have been able for him to recognize that an irregular and uncontrolled feeding was able to represent a danger for the health of the animals. The excuse not to know that fresh hay is dangerous for horses is therefore irrelevant.

The defense that somebody else might be also responsible is irrelevant already due to the regulation in §830 I 2 BGB. The statutory rules that joint trespassers are liable as joint debtors for the damages – even if the actual offender cannot be determined.

According to §§251, 249 I BGB, the plaintiff is only entitled to collect approx. T€ 5.5 for the mare and T€ 3.5 for the pony. The court estimated these values pursuant to §280 ZPO. The court based its decision on an ordered expertise and the expert concluded that the horses were nothing really special. He especially did not submit any certificates that the horse had received any special training. The plaintiff therefore only claimed but was not able to prove that the mare had any special training.

Since the costs for disposure of the carcasses are a direct result of the death, they can also be awarded. The costs for mating and purchasing the horse have nothing to do with the death after feeding the mare so that these cannot be awarded.

Published on the old CMS: 2008/6/5
Read on the old CMS till November 2008: 3,172 reads