Cox v. Crane Creek Sheep Co.

• Decision Date: 03 September 1921
• Parties: CLARK COX, Respondent, v. CRANE CREEK SHEEP COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

200 P. 678

34 Idaho 327

CLARK COX, Respondent, v. CRANE CREEK SHEEP COMPANY, a Corporation, Appellant

Supreme Court of Idaho

September 3, 1921

DAMAGE TO PROPERTY-EVIDENCE-PROOF OF AGENCY.

1. The declarations of one assuming to act as agent are not admissible to prove his agency.

2. In actions for damages to property witnesses, if permitted to state the gross amount of damages, should first be required to state the items of damage and such other facts upon which their estimates are based as will enable the jury to make their own estimates and form their own conclusions as to the damages sustained.

APPEAL from the District Court of the Third Judicial District, for Boise County. Hon. Charles F. Reddoch, Judge.

Action for damages for trespass of sheep. Judgment for plaintiff. Defendant appeals. Reversed.

Judgment reversed and a new trial granted. Costs awarded to appellant.

Martin & Cameron, for Appellant.

"The court should compel witnesses to particularize and specify the items of damage and not permit lump sum estimates. The jury must determine the amount of damages and the statement by a witness of his conclusion as to a lump sum furnishes no basis for calculation by the jury." (McGuire v. Post Falls Lumber Co., 23 Idaho 608, 131 P. 654; McKissick v. Oregon Short Line Ry. Co., 13 Idaho 195, 89 P. 629; Pacific Livestock Co. v. Murray, 45 Ore. 103, 76 P. 1079; Hatch Bros. Co. v. Black, 25 Wyo. 109 165 P. 518.)

"In an action for trespass by sheep and cattle, statements of persons herding them that they belonged to defendant were inadmissible, being hearsay and not registered within that exception to the hearsay rule." (Surbaugh v Butterfield, 44 Utah 446, 140 P. 757.)

D. L Rhodes, for Respondent.

A witness who is qualified after detailing the various items of damage may then give his opinion as to the aggregate amount thereof. (Roseborough v. Whittington, 15 Idaho 100, 96 P. 437; Blagen v. Thompson, 23 Ore. 239, 31 P. 647, 18 L. R. A. 315; Planters' Mutual Ins. Co. v. Hamilton, 77 Ark. 27, 7 Ann. Cas. 55, 90 S.W. 283; McKissick v. Oregon Short Line Ry. Co., 13 Idaho 195, 89 P. 629.)

Where there is sufficient evidence, if uncontradicted, to sustain the verdict, it should not be set aside. (Darry v. Cox, 28 Idaho 519, 155 P. 660; Sweeten v. Ezell, 30 Idaho 154, 163 P. 612; Davenport v. Burke, 30 Idaho 599, 167 P. 481.)

Prima facie evidence of the ownership of the sheep having been made, the statements of the herders in charge of the sheep were admissible in evidence against the appellant. (Henderson v. Coleman, 19 Wyo. 183, 115 P. 439, 1136; Kelly v. Ning Yung Benev. Assn., 2 Cal.App. 460, 84 P. 321; Modoc Gold Mining Co. v. Skiles, 13 Colo. App. 293, 57 P. 190; Lemcke v. A. L. Funk & Co., 78 Wash. 460, Ann. Cas. 1915D, 23, 139 P. 234; Hope Mining Co. v. Burger, 37 Cal.App. 239, 174 P. 932; 2 C. J. 939; Chittenden v. King Shoe Co., 38 Colo. 187, 88 P. 183; Godsmark v. Bennett's Estate, 52 Colo. 198, Ann. Cas. 1913C, 1266, 120 P. 151; Union Oil Co. v. Stewart, 158 Cal. 149, Ann. Cas. 1912A, 567, 110 P. 313; Waldner v. Bowdon State Bank, 13 N.D. 604, 3 Ann. Cas. 847, 102 N.W. 169; 2 R. C. L. 250; 4 C. J. 977.)

DUNN, J. Rice, C. J., and McCarthy and Lee, JJ., concur. Budge, J., did not sit at the hearing or take any part in the opinion.

OPINION

DUNN, J.

This action was brought by respondent against appellant to recover $ 700 damages which respondent claims to have suffered by appellant's grazing its sheep on 320 acres of land owned by respondent in Boise county. The case was tried before the court with a jury and a verdict returned in favor of respondent for $ 650, for which amount judgment was rendered, together with costs amounting to $ 75.50. Appeal was taken from said judgment.

Appellant specifies numerous errors, only two of which it will be necessary to notice. In attempting to prove ownership of the sheep that did the damage claimed respondent offered evidence as to the brand with which said sheep were marked and also the testimony of certain witnesses to the effect that they had talked with the herders of said sheep and that said herders had stated that appellant was the owner. The herders were not called to testify. Evidence of the brand was properly admitted, but it was not competent for witnesses to testify as to what the herders had said about the ownership of the sheep. This is so well settled as to require no citation of authority. The admission of this evidence will require a reversal of the judgment.

Appellant also complains of the testimony given by certain witnesses as to the damage caused by said sheep. They...