Winchell v. Nat'l Exp. Co.

• Decision Date: 17 February 1892
• Citation: 23 A. 728,64 Vt. 15
• Parties: WINCHELL v. NATIONAL EXP. CO.
• Court: Vermont Supreme Court

23 A. 728

64 Vt. 15

WINCHELL

v. NATIONAL EXP. CO.

Supreme Court of Vermont, General Term.

Feb. 17, 1892.

Exceptions from Rutland county court; Taft, Judge.

Case by Jenks L. Winchell against National Express Company for injuries to plaintiff's dog. Verdict and judgment for plaintiff. Defendant excepts. Reversed.

The plaintiff boxed his dog, which was a valuable mastiff bitch, for shipment by express to Long Island, and notified the defendant's agent at Fair Haven. Thereupon the defendant's agent sent the express wagon to the plaintiff's residence, where the dog was, to transport it from there to the express office. While on the way the dog was so injured as to render it unfit for breeding purposes. The defendant denied its liability—First, because the agent had no authority to re. ceive the dog at the residence of the plaintiff; second, because the plaintiff had been notified that the dog, if sent, would be at the owner's risk, and had shipped it upon that condition. The plaintiff's second request was as follows: "A person who had no duties relative to express matter, except to take packages from the railroad office to the consignees, and take similar parcels from consignees to the office of the company for transportation, has no authority to bind the company by an acceptance of goods; and until a delivery of the goods to an agent authorized to accept them there is no responsibility attaching to them as common carriers."

W. H. Preston, for plaintiff.

J. C. Baker and Geo. E. Lawrence, for defendant.

ROSS, C. J. 1. The objections interposed by the defendant to the testimony of the plaintiff and of Coffin are unavailing, unless exceptions were saved to the ruling of the court. The three questions and answers of these witnesses to which exceptions were saved were on subjects material to the proper estimation and determination of the value of the plaintiff's dog. The first related to the breeding and characteristics of her dam; the second to the elements constituting her value; and the third to whether her sire and dam were valuable. They called for facts within the knowledge of these witnesses, which bore upon the value of the dog, which the plaintiff claimed was injured by the neglect of the defendant. There was no error in their admission. 1 Greenl. Ev. (12th Ed.) §§ 440, 440a: 2 Best, Ev. (Wood's Ed.) § 513. The breeding and pedigree of a dog used for breeding are elements to be considered in determining its value, as well as its personal characteristics.

2. The plaintiff sought to hold the defendant for an injury received while transporting the dog from the plaintiff's house, in Fair Haven, to the defendant's office, where it received and delivered matter carried by it as an express company, partly on the ground that it had knowingly held out its agent, F. O. Vaughn, as having apparent authority—whether he had such authority in fact or not—to receive express matter at the plaintiff's residence, and at the residence of its other patrons in the village. It sought to establish this apparent authority in part by the use of the wagon, in which the dog was being transported when injured, in the business in collecting and delivering express packages, which wagon had the name of the defendant printed upon its sides, and by the use of call-curds in connection with such use of the wagon. The plaintiff claimed that such use being known to him authorized him to believe that when he delivered this dog into the wagon it was a delivery to the defendant, no matter whether in fact the defendant had given Vaughn authority to receive express packages for it at the residences of the patrons in the village. As bearing upon this issue, raised by the plaintiff, it was material for the defendant not only to show it did not own the wagon, and did not authorize its use in collecting or delivering express packages, but also to show that the whole use of the wagon and team, known to the plaintiff, was such that the plaintiff, in the exercise of reasonable prudence, was not authorized in believing that the receipt of the dog by Vaughn, as its servant, into this wagon was a receipt by the defendant. The three questions asked Vaughn, and excluded by the court, as well as the question put to Morehouse, and excluded, called for information in regard to the use of the wagon by Vaughn in other than express business. The first two questions to...