Brady v. Shirley
Decision Date | 04 May 1901 |
Parties | BRADY v. SHIRLEY et al. |
Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Fall River county; Levi McGee, Judge.
Action by George W. Brady against Samuel Shirley and another. From a judgment in favor of defendants, and from an order denying a new trial, plaintiff appeals. Reversed.Kellar & Kellar and Walter L. Anderson, for appellant. Wilson & Wilson, for respondents.
This is an action in claim and delivery for the possession of a young horse. Verdict and judgment for the defendants, and the plaintiff appeals.
The horse was claimed by both the plaintiff and the defendants, and the case turns upon the question of the animal's identity. Numerous errors are assigned, only two of which we shall discuss in this opinion, namely, that the court erred in admitting the works of certain veterinary surgeons to be read to the jury, and that the court erred in permitting the jury to examine the horse in question and divers other horses not in controversy in this action. On the trial the defendants were permitted, over the objection of plaintiff, to read the above-named works to the jury as evidence. These works were written on the subject of domestic animals, including the horse. The evident object and purpose of the introduction of these works was to inform the jury on the question of the dentition of the horse, in order that the jury might determine whether or not the horse in question was of the age contended for by the defendants. It is contended on the part of the appellant that these books were inadmissible for three reasons: (1) They were all works of inductive science, and did not belong to the class of exact science, which works are sometimes admissible; (2) they were not in any manner shown to be standard authorities, or even of good repute; (3) they were introduced for the purpose of proving age by the animal's teeth. This was a subject for oral evidence on the part of witnesses, and a number of witnesses testified upon this subject on the part of the defendants. With the exception of a class of works, such as almanacs, astronomical calculations, tables of life expectations in matters of insurance and the like, published works are inadmissible as evidence before the jury. State v. Sexton, 10 S. D. 127, 72 N. W. 84;People v. Millard, 53 Mich. 75, 18 N. W. 562;People v. Hall, 48 Mich. 490, 12 N. W. 665;People v. Wheeler, 60 Cal. 581;Com. v. Wilson, 1 Gray, 337;Huffman v. Click, 77 N. C. 55;Knoll v. State, 55 Wis. 249, 12 N. W. 369;Boyle v. State, 57 Wis. 472, 15 N. W. 827. See, also, State v. Morris, 47 Conn. 179; Schell v. Plumb, 55 N. Y. 598:Sauter v. Railroad Co., 66 N. Y. 50; 9 Am. & Eng. Enc. Law (2d Ed.) 886, and cases cited. Medical works, even if of respected authority, are not competent evidence if objected to by the opposite party. In Ashworth v. Kittridge, 12 Cush. 193, the supreme court of Massachusetts, speaking by Shaw, C. J., says: ...
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