23 A. 728 (Vt. 1892), Winchell v. National Exp. Co.

Citation:23 A. 728, 64 Vt. 15
Opinion Judge:ROSS, Ch. J.
Party Name:JENKS L. WINCHELL v. NATIONAL EXPRESS CO
Attorney:J. C. Baker and Geo. E. Lawrence, for the defendant.
Case Date:February 15, 1892
Court:Supreme Court of Vermont
 
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Page 728

23 A. 728 (Vt. 1892)

64 Vt. 15

JENKS L. WINCHELL

v.

NATIONAL EXPRESS CO

Supreme Court of Vermont

February 15, 1892

GENERAL TERM, OCTOBER, 1891

Case for injuries done the plaintiff's dog. Plea, the general issue. Trial by jury at the September term, 1890, Rutland County, Taft, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts.

Judgment reversed and cause remanded.

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

OPINION

[64 Vt. 17] ROSS, Ch. 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. on Ev. (12th Ed.) ss. 440, 440a; 2 Best on Ev. (Wood's Ed.) s. 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. Vaughan, 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 [64 Vt. 18] sides,--and by the use of call-cards, in connection with such use of the wagon. The plaintiff claimed that such use being known to...

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