Dansro v. Scribner

• Decision Date: 12 November 1936
• Citation: 187 A. 803,108 Vt. 408
• Parties: JOHN J. DANSRO v. SMITH SCRIBNER ET AL
• Court: Vermont Supreme Court

187 A. 803

108 Vt. 408

JOHN J. DANSRO v. SMITH SCRIBNER ET AL

Supreme Court of Vermont

November 12, 1936

October Term, 1936.

Trover---Unnecessary to Prove Conversion on Date Alleged---Necessity of Stating Precise Ground of Motion for Verdict---Duty of Party Moving for Verdict---Motion Held Sufficiently Definite---Affirmative Act Necessary for Conversion---Liability for Tort of One Aiding in Commission or Benefiting---Verdict Not to Be Based on Conjecture---Defendant Held Entitled to Directed Verdict for Lack of Evidence of Participation in Tort---Consideration of Point Where No Exception Asked or Saved---Ground of Exception Not Stated Below---Error Not Prejudicial Where no Objection to Similar Testimony.

1. In trover action, it is unnecessary to prove that the conversion took place on the date alleged in the declaration.

2. A motion for a directed verdict must point out the precise ground on which it is predicated; otherwise it is not error to overrule it.

3. A party moving for a directed verdict is bound to assist the court to an adequate understanding of the situation presented to the end that the court can make its ruling understandingly.

4. In action for conversion, where declaration was amended during trial to change date of alleged conversion, and court clearly understood that conversion took place on date specified and so submitted case to jury, motion for directed verdict on ground evidence showed defendant had nothing to do with the conversion held sufficiently definite as against claim of plaintiff that it was unnecessary to prove conversion took place on date alleged.

5. A conversion, in the sense of the law of trover, necessarily involves something equivalent to an affirmative act as contrasted with a mere nonfeasance.

6. All who aid the commission of a tort by another, or who approve of it after it is done, if done for their benefit, are liable in the same manner as they would be if they had done it with their own hands.

7. A verdict cannot be based upon conjecture.

8. In action of trover, where the conversion relied upon was the act of bringing the cattle involved to farm of one of defendants, held on the evidence that no reasonable inference could be drawn that such defendant took any part in bringing the cattle there, however clearly it might show he was guilty of a subsequent conversion, and that he was entitled to a directed verdict.

9. Where answer to question was given over objection, but no exception was saved or even asked for, point is not for consideration in Supreme Court.

10. In action for conversion of cattle, where claim was made in brief that there was no evidence connecting calf, which was subject matter of conversation admitted over objection it was hearsay, with cattle involved in suit, held that excepting party should have objected below on that ground or have either asked that the connection be made before the evidence was received or have later moved to strike it out if it was not properly connected up.

11. In such action, admission of conversation regarding ownership of a calf, if error, held not prejudicial, where similar testimony had been received without objection.

ACTION OF TORT for conversion of cattle. Plea, the general issue. Trial by jury at the March Term, 1936, Rutland County Cleary, J., presiding. Verdict and judgment for the plaintiff against three defendants. The defendants excepted. The opinion states the case.

Judgment against Smith Scribner reversed, and judgment that he recover his costs. Judgment against the other defendants affirmed.

Bert H. Stickney and Seymour P. Edgerton for the defendants.

Lindley S. Squires for the plaintiff.

Present POWERS, C. J., SLACK, MOULTON and SHERBURNE, JJ., and JEFFORDS, Supr. J.

OPINION

SHERBURNE

This is an action of tort for the conversion of twenty-six head of cattle. Verdict and judgment were for the plaintiff against all three defendants, and the case comes here upon their exceptions.

On November 13, 1935, at a time when the plaintiff was absent the defendant Clarence Dansro and his brother Oliver, sons of the plaintiff, removed the cattle from plaintiff's farm and drove them to defendant Scribner's farm. Defendant Benjamin assisted. Scribner ran an auction advertisement under his name as owner in the Rutland Herald on December 2, 3, and 4, 1935, that he would sell fifty dairy cows, describing them, on his farm on December 4. This number included all of the cattle removed from the Dansro farm and some of Scribner's own. The auction was held under Scribner's management and a part of the Dansro cattle and some of his own were sold. On the day after the auction Scribner sold two of the Dansro cattle at private sale. The remainder of the Dansro cattle remained upon the Scribner farm until the following March, when they were removed by the defendant Clarence Dansro.

At the close of all the evidence defendant Scribner moved that the court direct a verdict in his favor "for the reason that from all the evidence in the case, looked at in the most favorable light for the plaintiff, tends to show that he had nothing to do with the alleged conversion of these cattle." This motion was overruled and an exception saved. This exception is briefed upon the theory that the alleged conversion took place upon November 13, 1935, and the plaintiff claims that, as it was unnecessary to prove that the conversion took place upon the day alleged in the declaration, the motion was not sufficiently definite. We agree that it was unnecessary to prove that the conversion took place on the date alleged in the declaration. Gordon v. Journal Publishing Co., 81 Vt. 237, 242, 69 A. 742; 1 Chit. Pl. (13th Am. ed. from 6th Eng. ed.) 257, 393. We have repeatedly held that a motion for a verdict must point out the precise ground on which it is predicated; otherwise it is not error to overrule it. Castonguay v. Grand Trunk Ry. Co., 91 Vt. 371, 375, 100 A. 908, and cases cited. The moving party is bound to assist the court to an adequate understanding of the situation presented to the end that the court can make its ruling understandingly. Grapes v. Willoughby, 93 Vt. 458, 460, 108 A. 421. We are satisfied that the motion was sufficiently definite under the circumstances. During the trial the plaintiff was permitted to amend his declaration by changing the date of the alleged conversion from November 1, 1935, to November 13, and the court clearly understood that the conversion took place upon that date and so submitted the case to the jury as the time when the plaintiff claimed that the conversion took place.

No question is made but that the other defendants were guilty of a conversion upon November 13, 1935; but to hold Scribner also guilty as a joint tort-feasor upon that date it must appear that he in some way participated in the removal of the cattle to the Scribner farm. Ellis v Howard, 17 Vt. 330; Myrick v. Downer, 18 Vt. 360. A conversion, in the sense of the law of trover, necessarily involves something equivalent to an affirmative act as contrasted with a mere nonfeasance. Manley Bros. v. Boston & Maine Railroad, 90 Vt. 218, 221, 97 A. 674; Oakdale Farms, Inc....