Adm'r of Stowe v. Bishop

• Decision Date: 28 February 1886
• Parties: ADMINISTRATOR OF STOWE v. BISHOP.
• Court: Vermont Supreme Court

3 A. 494

58 Vt. 498

ADMINISTRATOR OF STOWE

v. BISHOP.¹

SUPREME COURT OF VERMONT.

February Term, 1886.

Exceptions from county court, Bennington county.

This was an action on the case, brought to recover the value of a horse alleged to have been killed by the negligence of the defendant. Heard on referee's report of the facts. Judgment on the report, by the county court, Walker, J., presiding, for the plaintiff. Exceptions by the defendant. The referee's report found, among other things, that the defendant hired the horse in question of the plaintiff's intestate, and drove it to a barn near a certain steam-mill; that there he drove the horse into a side road, put a blanket on it, and went away from the horse a few rods; that the whistle of the steam-mill, blowing very loudly, frightened the horse, that it whirled and ran, and before reaching the highway fell and broke its leg; that the defendant cared for the horse that night, and had it taken home; that the horse was killed, and that the owner was justified in killing the horse, without attempting its cure; that the defendant, in leaving the horse in the manner that he did, under the circumstances given, did not exercise ordinary care and prudence; that the damages were for the loss of the horse, $85. The plaintiff was permitted to show, against the objection of the defendant, and subject to his exception, that while going after the horse the night of the injury, in relating the circumstances of the accident, he said he was careless in leaving the horse without hitching, and expected to pay for it; that on reaching the house of the intestate that night he proposed to go in and see him about the horse, but was advised to wait until morning, and did not go in; that the next morning he went to the house, and told him the circumstances of the accident, and said he expected to have to pay for the horse. Defendant proposed to ask of certain witnesses, who had owned many horses, and were at the mill at the time of the accident, and were familiar with the premises, the following question: "From the character of the horse and the surroundings, whether, in your judgment, it was the act of a careful, prudent man to leave the horse in the manner this was left." The question was excluded, and exceptions taken by defendant. The evidence was offered under the claim that the witnesses were experts, and was excluded on the ground that it was not proper expert testimony. Mrs. Nellie Stowe, the widow of the deceased plaintiff, was offered as a witness, and her evidence was taken, against the objection of the defendant, and subject to his exception, and she testified to declarations made by the defendant; but did not testify to any conversations with or confidential communications made by her husband. The defendant filed exceptions to the report, covering the exceptions he made to the testimony, which the county court overruled.

H. N. Hix, for plaintiff.

The plaintiff insists that it was proper for the referee to permit the plaintiff to show the sayings and declarations of the defendant, made immediately after the injury to the mare, and previous to the bringing of this suit, to different persons, other than the plaintiff, relative to the circumstances attending the injury, admitting his carelessness, and that he expected to have to pay for the mare. Doon v. Ravey, 49 Vt. 296. Admissions made on the occasion of an attempted settlement, if parcel of the treaty for a compromise, and made and induced in furtherance of the treaty, are privileged, and cannot be given in evidence against him because they are made upon confidence and trust, and are received as such by the party to whom they are addressed. But if a party, during such treaty, admits a fact to be true because it is a fact, and not because he is willing to treat it as a fact for the purpose of the then pending compromise, it may properly be shown in evidence. The declarations and sayings of defendant which were given in evidence before the referee, in the case now pending, were not made with a view to compromise, but they were a free and full expression of the facts as to the careless and negligent manner in which the defendant left the mare, and the same were made to others than the plaintiff immediately after the accident, and before and after defendant had seen plaintiff; admitting the fact, which is apparent, viz., that he was careless in leaving the mare unhitched at this steam-mill, and that he expected to have to pay for the mare,—all of which conversation took place previously to the bringing of this suit, and before any attempt at compromise. Stanford v. Bates, 22 Vt. 546.

It was proper for the wife of the deceased plaintiff, Nellie Stowe, to testify. When the husband is living, and a party to the suit, and the wife is not a party, the wife is not a competent witness. But if the husband is deceased, his widow is a competent witness to matters affecting her late husband's interest, unless it involves the disclosure of matters of confidence between the husband and wife, or transactions affecting the character of the husband. Carpenter v. Moore, 43 Vt. 394; Smith v. Potter, 27 Vt. 304; Edgell v. Lowell, 7 Vt. 534; Clifford v. Richardson, 18 Vt. 626; Lester v. Pittsford, 7 Vt. 158; Crane v. North field, 33 Vt. 124; Norman v. Wells, 17 Wend. 136. As to the offer made by the defendant of expert witnesses, their evidence was properly excluded by the referee—First, because it was not expert evidence; second, it was asking the opinion of witnesses as to the fact to be proved, which fact the referee was to find from all the evidence in the case. An expert is a person who possesses peculiar skill and knowledge upon the subject-matter that he is requested to give an opinion upon. The very object of expert testimony is to elicit facts, reasons, and conclusions which science and experience of the witness enable him to develop.

O. E. Butterfield, for defendant.

Under ordinary circumstances, the verbal admissions of a party are evidence against him, and may be proved by competent witnesses, but they ought to be received with great caution. 1 Greenl. Ev. § 200. These declarations of the defendant were not statements of fact, to be weighed by the trier of the cause, but rather a legal conclusion, based upon real or fancied facts, stated by the defendant under a stress of circumstances, as his supposed legal liability, and he ought not to be concluded by them. According to...