Cronberg Brothers v. Johnson

• Decision Date: 20 July 1922
• Docket Number: 1032
• Parties: CRONBERG BROTHERS v. JOHNSON
• Court: Wyoming Supreme Court

208 P. 446

29 Wyo. 11

CRONBERG BROTHERS v. JOHNSON

No. 1032

Supreme Court of Wyoming

July 20, 1922

ERROR to the District Court of Carbon County, VOLNEY J. TIDBALL Judge.

Action of trover by Samuel W. Johnson against Cronberg Brothers Inc., for the recovery of damages for the conversion of plaintiff's sheep. There was judgment for plaintiff and defendant brings error. The facts are stated in the opinion.

Judgment affirmed.

M. E Wilson and Brimmer & Brimmer, for plaintiff in error.

The verdict is not sustained by the evidence; it is not sustained by the testimony of the plaintiff, himself. The alleged count of sheep made at the pens by plaintiff and the witness Quillan was so improbable as to be unworthy of belief. It was physically impossible for the sheep of plaintiff and defendant to become mixed between the count of plaintiff's sheep in April and the count made in May thereafter. Plaintiff never demanded any specific number of sheep from defendant. The testimony of plaintiff's several witnesses was unreasonable and improbable. When a verdict rests upon improbable or impossible evidence, or upon evidence contrary to the laws of nature and the facts of common knowledge, an appellate court will set aside the verdict and correct the discretion of the lower court. (Zoccolillo v. O. S. L. R. Co. (Utah) 177 P. 201.) The court below should have vacated the verdict and ordered a new trial. (Kester v. Wagner, 22 Wyo. 512, 145 P 748; Felton v. Spiro, 78 F. 576.) Misconduct of the jury was shown by a large number of affidavits filed in support of the motion for new trial. The court had ordered the jury to be kept together, pursuant to the authority of Section 4498 C. S. 1910. Jacob Helfer, one of the jurors, separated from the jury shortly after midnight and went to his home to look after a cow that had been reported sick. Other acts of misconduct on the part of the individual jurors was found.

Section 4498 C. S. 1910 is a statute peculiar to the State of Wyoming and was not adopted from Ohio as were Sections 4501 and 4502 C. S. 1910, which permit separation of a jury under certain conditions. Members of a jury having deliberately violated the order of the court, the verdict should be set aside. The doctrine of "no prejudice" has no application to the situation as it is here presented. (Shepherd v. Baylor, 5 N.J.L. 954; Nickelson v. Smith, 15 Ore. 200, 14 P. 41.) The statute is mandatory. The case of Armleder v. Lieberman, 33 Oh. St. 77, often cited in support of the doctrine that such a statute is directory, did not pass upon this feature of the statute, nor did the Ohio court have before it language such as is contained in Section 4498. The court erred in denying the motion of defendant to strike certain testimony given by plaintiff Johnson relating to a conversation had with one Wolf, who was in charge of the shearing pens, Wolf being the agent of defendant and the conversation being offered and admitted on the evident theory that it constituted admissions of defendant company. The trial court recognized the error in passing upon the motion for a new trial. It was not within the scope of Wolf's authority to bind the Cronberg Company with admissions relative to the ownership of sheep passing through the shearing pens. (2 Jones' Comm. 255; 2 A. & E. Cyc. L. & P. 163, 164; Goltra v. Penland, 77 P. 129, 45 Ore. 254; Norfolk v. Smitherman, 101 S.E. 208; Winchester v. Creary, 116 U.S. 161; 29 L.Ed. 519; Sweeney v. Sweeney, 119 Ga. 76, 46 S.W. 76, 100 Am. St. 159; Wilson v. Bowden, 113 Mass. 423; Whitney v. Wagoner, 87 N.E. 603.)

In the Massachusetts case a note had been left at a bank for collection; statements of bank officials as to the ownership of the note were held inadmissible.

(Surbaugh v. Butterfield, 44 Utah 447; 140 P. 757.)

Here it was held that the declarations of a herder of trespassing sheep and cattle that they belonged to defendant and that he was herding them for him, were inadmissible declarations of an agent made while acting within the scope of his authority and in the courts were admissible against the principal. (Henderson v. Coleman, 19 Wyo. 183; 115 P. 439.)

The trial court erred in not permitting the admission of a written statement made by witness C. B. Hunter offered by defendant in the course of Hunter's cross-examination.

Instruction No. 1, permitting the jury to take into consideration the matter of fluctuating value of the sheep in controversy and to find the highest market value that such sheep attained between the date of the conversion and the last date, in the fall of 1917, on which there is evidence of a market value of such property, was erroneous. The rule of damages was the market value of the sheep on the date of conversion. The instruction is not applicable to the pleading which does not allege a fluctuating value, and there is no evidence that the sheep had any fluctuating value.

W. E. Mullen and McMicken & McMicken, for defendant in error.

The cross-examination of the plaintiff Johnson with reference to the allegations of the petition relating to exemplary damages is immaterial in view of the fact that the jury was instructed that the evidence was insufficient to sustain plaintiff's claim for exemplary damages, and no exemplary damages were awarded. That issue was out of the case when it was submitted to the jury. The jury was properly instructed as to the credibility of the witnesses, the weight of their testimony, the preponderence of the evidence, and under this instruction, decided the issues in favor of the plaintiffs below. There being evidence to sustain the verdict, a reviewing court will not disturb it. The trial court overruled defendant's motion for new trial, after a careful review of the evidence, finding it sufficient to sustain the verdict. Kester v. Wagner, 22 Wyo. 512; 145 P. 748 is not in point. That case was brought to the attention of the court below by repeated references in the argument on the motion for a new trial. The trial court in its discretion denied the motion and this exercise of discretion is not reviewable here. (Edwards v. O'Brien, 2 Wyo. 493.) The disappearance of 1184 head of sheep out of 10,632 head within a period of three weeks, without any of the markers, or "blacks" or "bells" missing from the entire herd, destroys the theory advanced by plaintiff in error that the missing sheep drifted away in a storm. The sheep ranges of the parties to the cause were in the same locality and so situated that it was necessary for the Cronberg herds to pass the Johnson range in going to the town of Medicine Bow. The evidence of the count made by Johnson of his sheep in April is clear and undisputed, as was also the evidence of his count made in the month of May of the same year. The evidence shows that Johnson made every possible effort to have the sheep separated before they were shorn and, failing to secure a shut-down of the shearing plant, plaintiff and witness Quillan made a count and tally of the number of plaintiff's sheep found in Cronberg's herds as they passed through the shearing pens. The evidence of numerous other witnesses showing the presence of sheep bearing Johnson's brand observed by them mingled with Cronberg's sheep at the pens during the shearing operation clearly shows the situation. The value of plaintiff's sheep thus converted by defendant was also clearly shown. The action of a trial court in refusing a new trial will not be disturbed unless there appears an abuse of discretion. (14 Ency. P. & P. 780.)

The Supreme Court will not disturb a verdict based upon conflicting evidence. (Granger v. Lewis, 2 Wyo. 231; Edwards v. O'Brien, 2 Wyo. 493; Kester v. Wagner, supra; Evans v. Cement Co., 21 Wyo. 184; Saratoga v. Jensen, 20 Wyo. 323; Irrigation Co. v. La Porte, 26 Wyo. 250; Caswell v. Ross (Wyo.) 188 P. 677.)

The refusal of a trial court to grant a new trial is not assignable as error unless an abuse of discretion is clearly shown. (Stockgrowers v. Gray, 24 Wyo. 18.) An abuse of discretion in vacating a verdict and granting a new trial is reviewable. (Kahn v. Trader's Ins. Co., 4 Wyo. 419.)

The alleged misconduct of the jury was presented by affidavits and counter affidavits in the arguments on the motion for new trial. In its denial of the motion for new trial, the court found that while the order of the court requiring the jury to be kept together had been violated, no prejudice resulted from such misconduct. The affidavits relating to the alleged misconduct of the jurors were unworthy of consideration, in omitting to name the jurors complained of. (Cornelius v. State, 12 Ark. 782; State v. Cotts, 39 S.E. 605, 55 L. R. A. 176; People v. Simonds, 23 Cal. 348; Cokin v. State, 20 Ark. 53.)

Where counter affidavits show that no prejudice resulted from the alleged misconduct of the jury, a new trial should not be granted. (Nicholson v. State, 18 Wyo. 314; Woodward v. Leviatt, 107 Mass. 453; Johnson v. Witt, 138 Mass. 79; State v. Gay, 18 Mont. 51, 44 P. 411; State v. Lawrence, 70 Vt. 324; State v. Cotts, 49 W.Va. 615, 39 S.E. 605.)

The contention that Section 4498 C. S. 1910 is mandatory is without merit, in view of the fact that it was enacted as a territorial statute in 1869, while Sections 4501 and 4502 C S. 1910 were adopted from the State of Ohio in 1886, and being a more recent expression of the legislature, conflicts with the provisions of an earlier statute. Moreover, the case of Cook v. Territory, 3 Wyo. 110, decided on appeal on October 9, 1884 prior to the adoption of the Ohio statute referred to in considering the early territorial statute, held that the separation of one or more of the jurors from the others and the conferring with outside parties on subjects not connected with the case, would not prevent a fair...