Dana Picknell v. Robert Fulton

• Decision Date: 15 May 1915
• Citation: 94 A. 104,89 Vt. 51
• Parties: DANA PICKNELL v. ROBERT FULTON
• Court: Vermont Supreme Court

94 A. 104

89 Vt. 51

DANA PICKNELL v. ROBERT FULTON

Supreme Court of Vermont

May 15, 1915

February Term, 1915.

TROVER for a heifer. Plea, the general issue. Trial by jury at the June Term, 1914, Orange County, Fish, J., presiding. Verdict for the plaintiff for $ 47.50 actual damages, and $ 52.08 exemplary damages. Remittitur filed reducing the verdict to $ 75, the amount of the ad damnum. Judgment for the plaintiff for $ 75 and costs. The defendant excepted. The opinion states the case.

Judgment affirmed.

John W. Gordon and E. W. Smith for the defendant.

David S. Conant for the plaintiff.

Present MUNSON, C. J., WATSON, HASELTON, POWERS, and TAYLOR, JJ.

OPINION

MUNSON

The contest is over a grade Jersey heifer, and the question is one of identity. The plaintiff bought, and the defendant raised, such a heifer. The plaintiff's heifer had been tested and tagged; the defendant's had not. The heifer taken from the plaintiff's possession was tagged. The defendant claimed that the plaintiff or his vendor changed the tag from one animal to the other.

The plaintiff showed by the veterinary who made the test that it was his custom when he made a test to put a tag in the ear of the animal tested, and that in this case he made the test in April but did not put in the tag until December. The plaintiff then asked under exception, and received an affirmative reply to, the question: * * * Then this "was an extraordinary instance rather than a regular one?" The defendant treats this as an attempt to prove that the witness tagged the heifer by showing a specific failure to follow his custom. We do not so understand the evidence; but, in any event, we see no ground on which the answer objected to can be considered error. It made more prominent the fact that the witness's course in this instance was not in accordance with his custom as testified to, but added nothing to what he had previously stated.

The plaintiff asked the following question of a son of the person who raised the Picknell heifer: "I call your attention to the grade Jersey heifer that you saw in Mr. Fulton's barn, and ask you whether or not it is the same heifer that your father raised." This was objected to on the ground that it called for the witness's conclusion as to the very question which the jury was to decide. The witness answered that it was the same heifer, and we think the evidence was not objectionable as claimed. It was not an assertion of the witness as to the present ownership of the heifer, but an identification of it as the heifer his father raised. This identification, if relied upon by the jury might determine the ownership against the defendant's claim through its connection with other evidence; but if this result were reached by the jury it would be a finding from all the evidence, and determine a broader inquiry than that submitted to the witness.

It is argued that the witness should have been called upon to describe the marks on the heifer his father raised, and give such other facts as would serve to identify it. If we assume that this was necessary to make admissible the question objected to, no error will be shown. This single question and answer contains all the knowledge we have regarding the witness's testimony. For anything that appears, the line of inquiry insisted upon may have been followed in connection with the answer taken. If necessary to sustain the court's ruling it will be presumed that there was this evidence, in the absence of anything in the record indicating the contrary. To save this question there should have been a statement in the exceptions that no evidence descriptive of the animal was given by the witness. Armstrong v Noble, 55 Vt. 428; Usher v. Severance, 86 Vt. 523, 86 A. 741.

The defendant introduced evidence tending to show that the heifer in question was quiet and gentle at home to lead and drive, but no evidence as to its conduct in this respect when away from home. The plaintiff was permitted to show in rebuttal that the heifer was not gentle and quiet to drive when away from home, and that it was then necessary to hamper her with ropes and straps. The defendant objected that...