Adams v. Cook
| Decision Date | 03 March 1917 |
| Citation | 100 A. 42,91 Vt. 281 |
| Parties | WILL W. ADAMS v. WALTER M. COOK AND CLYDE E. COOK |
| Court | Vermont Supreme Court |
February Term, 1917.
TORT. Plea the general issue. Trial by jury before the municipal court for the Windsor probate district. Verdict for the plaintiff. Exceptions by defendants. The defendant Clyde E Cook was the minor son of the defendant, Walter M. Cook. The opinion states the case.
Judgment affirmed except as to damages, but reversed as to those and cause remanded.
Gilbert A. Davis for defendant Walter M. Cook.
Present WATSON, C. J., HASELTON, POWERS, TAYLOR, and MILES, JJ.
This is an action of tort for shooting two hound dogs, and comes here from the municipal court of the Windsor probate district. The defendants are father and son and there was evidence tending to show that the son, by direction of the father, shot these dogs--which were properly licensed and collared--while they were swimming Black River in pursuit of a deer.
The trial began in the forenoon of Saturday, March 4, 1916, and continued throughout the day and evening. At eleven o'clock, the case was submitted to the jury, and shortly after midnight, they reported a plaintiff's verdict, which was received by the court, and the case was then continued to a later date. It was taken up again on March 17, on which date the defendants appeared with separate counsel and filed motions respectively asking that judgment be arrested and that they be "dismissed" and "discharged," with costs. Some days later other motions and objections were filed by the defendants, under which they sought to raise the questions hereinafter referred to. These motions and objections were overruled and the defendants excepted. No question is made as to the manner in which the questions are attempted to be raised and we give no attention to that subject.
One ground of these motions was that Clyde Cook was a minor at the time of the trial and no guardian ad litem was appointed to look after his defence. This ground will not avail him. For, notwithstanding the fact that he may have been a minor at the time and so incapable of appearing for himself and defending his suit, or of appointing an attorney to appear and defend for him, his father was his natural guardian during his minority (P. S. 3144), and was sued jointly with him, and as the record shows was present with him throughout the proceedings, assisting, advising and defending. In these circumstances, it cannot be said that he has not had his day in court. The case cannot be distinguished, either as to its law or its facts, from Wrisley v. Kenyon, 28 Vt. 5, the doctrine of which was reaffirmed in Fuller v. Smith, 49 Vt. 253.
Another ground of the motions was that the verdict was rendered on Sunday. This, too, is unavailing. Sunday is, and was at common law, a dies non, but ministerial acts performed on that day are lawful. And, while as was said by the court in Cory v. Silcox, 5 Ind. 370, much useless learning has been expended on this point, resulting in some variety of opinion there-on, it is now the generally accepted doctrine of the cases that the return and receipt of a verdict on Sunday is a ministerial act and an act of "necessity and charity," within the meaning of the Sunday laws. Henderson v. Reynolds, 84 Ga. 159, 10 S.E. 734, 7 L.R.A. 327; Athens v. Miller, 190 Ala. 82, 66 So. 702; Tuttle v. Tuttle, 146 N.C. 484, 59 S.E. 1008, 125 Am. St. Rep. 481; State v. Keatine, 130 La. 434, 58 So. 139, 39 L.R.A. (N.S.) 844; Burrage v. State, 101 Miss. 598, 58 So. 217; Stone v. Bird, 16 Kan. 488; Baxter v. People, 3 Gilm. 368; Webber v. Merrill, 34 N.H. 202; Stone v. United States, 167 U.S. 178, 17 S.Ct. 778, 42 L.Ed. 127. See, also, Blood v. Bates, 31 Vt. 147; Sargeant v. Butts, 21 Vt. 99.
The defendants excepted to the failure of the court to charge the jury that there was a presumption of innocence in favor of Walter M. Cook, and that this presumption was evidence in his favor and must be overcome by evidence before a verdict could be rendered against him. No such charge was required. The rule which counsel for the defendants seek to apply is not one generally applicable to tort actions. It applies only when the tort charged involves fraud, dishonesty or crime. Bradish v. Bliss, 35 Vt. 326; Childs v. Merrill, 66 Vt. 302, 29 A. 532; McKinstry v. Collins, 76 Vt. 221, 56 A. 985.
The defendants excepted to the following instruction given to the jury:
Although the general rule thus laid down by the court was sound as an abstract proposition of law ; that part of it which referred to the approval of one for whose benefit the tort was committed was inapplicable to the case and should have been omitted. The application of the rule was immediately and correctly made, and that part of the instruction was free from legal fault.
It would be difficult for a jury to be misled by the instruction taken as a whole, and we are not satisfied that prejudice resulted to these defendants or either of them. Therefore, the exception is not sustained. S.Ct. Rule 7.
The defendants also excepted to an instruction that there was no difference between dogs as property and other property. The record shows that this statement was made in connection with others regarding the rights of a dog-owner who had complied with all the...
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