Dunbar v. McGill

• Decision Date: 13 April 1888
• Citation: 69 Mich. 297,37 N.W. 285
• Court: Michigan Supreme Court
• Parties: DUNBAR v. MCGILL.

37 N.W. 285

69 Mich. 297

DUNBAR v. MCGILL.

Supreme Court of Michigan

April 13, 1888

Error to circuit court, Cass county; ANDREW J. SMITH, Judge.

Action of trover by James F. Dunbar against William McGill for the alleged conversion of a flock of sheep. The case was four times tried in the circuit court, resulting each time in a judgment for plaintiff, and was once before in this court (see 31 N.W. 578,) when a new trial was granted. Defendant again appeals, on alleged errors in the rulings of the circuit judge on the admission of evidence.

CHAMPLIN J.

We granted a new trial in this case at the January term. See 31 N.W. 578. The case has been again tried, and has resulted in another verdict and judgment for the plaintiff. Error is assigned upon the charge of the court, and upon refusals to charge as requested by the defendant's counsel. We discover no error in the charge of the court, nor in his refusal to give the defendant's requests. So far as pertinent or proper they were covered by the charge as given. Error is also assigned upon the rulings of the court made upon the trial. The first three errors assigned we regard as unimportant. They were not supported by exceptions, and need not be noticed. The fourth error assigned is as follows "The circuit judge erred in refusing to permit the witness Henry Shanafelt to answer the question, 'What did he say to you?' put to him on cross-examination, and in his remarks and comments upon the question." There does not appear to have been exception to either the refusal of the court impliedly made, or to his remarks. The fifth assignment is based upon what appears in the record upon the cross-examination of the witness Shanafelt, as follows: " Question. State that conversation." Objected to as calling for the declaration of defendant. Defendant's counsel then stated, "We offer it, not for the purpose of getting the declaration of McGill, but for the purpose of indicating which way he came from, and where he had been that morning." Plaintiff's theory was, and his testimony tended to prove, that defendant was engaged in driving sheep along a certain road which passed the witness Shanafelt's house; that he had in his employ several different persons assisting to collect sheep of defendant from different farms in the vicinity, and drive them to the place of destination; that he had arranged with a farmer by the name of Quick to keep certain of his sheep over night in his fields, which lay west from Shanafelt's, upon the road leading to Cassopolis; that a small flock, driven by one Gray, reached Quick's about dark, and, before they were turned into the field, a stray flock of sheep, consisting of about 30 which were in the highway, became, without fault of defendant, intermingled with his; that, it being too dark to separate them that night, they were all turned into the field together, with the intention of separating them the next morning; that defendant then notified the neighbors along that highway that stray sheep had become mingled with his and endeavored to find the owner. He called at Shanafelt's, and inquired of him, and told Shanafelt that he would call again the next morning, and ascertain whether his had strayed from his fields. It was the theory of the plaintiff that defendant on the next morning, between the hours of 7 and 9, took with him a boy named Brown who had been employed to assist in driving his sheep, and drove in a buggy west, past Shanafelt's, to the field, where defendant, with this boy's assistance, assorted out the stray sheep, and drove them across two fields to the county fair-grounds, near Cassopolis, and put them in the fair-grounds; that then they drove in the buggy back east, past Shanafelt's, to a point near the school-house, where defendant directed him where to go to assist in collecting more sheep, and he went in one direction and defendant in another; that, a few days after, defendant went to the fair-ground, and took and drove away the sheep, and that these sheep were the plaintiff's. And he introduced evidence which tended to prove this theory. The witness Brown, the boy referred to, had testified upon a former trial that, on the morning after the sheep were turned into Quick's field, defendant and he left Hale's at about half-past 7 o'clock, and drove to the field where the sheep were; and on the way defendant stopped and talked with a man, about a minute, not far from the crossing. This must have been Shanafelt, as he lives nearest the crossing. They were driving west. That they then drove to the field, and assorted, out a flock, and took them over through a couple of fields, and into a field with a high board fence around, which he had since learned was the fair-grounds. That they then went back in the buggy, past Shanafelt's, to the school-house, where they parted, he going in one direction to assist in collecting and driving sheep, and defendant in another. He does not testify to stopping at Shanafelt's on the way back east. Plaintiff's witness Fox had testified to defendant's coming to his house that morning between 9 and 10 o'clock somewhere, as near as he could tell. It was a disputed question as to what time defendant arrived in the neighborhood where the sheep had been kept over night, and, as bearing upon the conversion claimed, it became material. Shanafelt had been twice sworn for plaintiff in the case before the present trial, and had testified without hesitation that on the morning in question, when he saw defendant and the boy, and talked with defendant, he came from the east. On this trial he was undecided as to which way the defendant came from. He had been thinking it over, and thought he was mistaken in his former testimony, and he now thought that defendant came from the west that morning. He was not real positive, and his recollection still was that they came from the east. He placed the time as about 8 o'clock, and could not have been later than 9. That the boy who was with him that morning was not the one who was with him the night before. On cross-examination he was asked if defendant notified him, when he came, that he had been down where the sheep were, and he replied that he did not. He was then asked, "What did he state to you?" whereupon the following colloquy occurred, as appears by the record: " Mr. Smith. Would that be proper? Question. Did you have any conversation with him that morning? Answer. Very little,-just a few words. Mr. Smith. I don't see how it would be proper. Howell. I think we can show it for the purpose of fixing time. Court. I never knew any court to hold that the declaration of your client can be introduced in his own behalf, for the purpose of showing time. You want to show by this man that he did not do what he is accused of. Question by Howell. State that conversation. Smith. Objected to as calling for the declaration of defendant. Howell. We offer it, not for the purpose of getting the declarations of McGill, but for the purpose of indicating which way he came from, and where he had been that morning." The court sustained the objection, and excluded the testimony.

The testimony should have been received. The plaintiff was endeavoring to prove a conversion of the sheep by the defendant by proving his acts. These acts were shown from the time he left Hale's that morning until he put the sheep in the fair-grounds. His words accompanying these acts were as much part of the res gest� as his acts. The act of placing the sheep in the fair-ground was not of itself a conversion. That depended upon whether that act was done to convert the sheep to his own use. If it was done simply as a means of keeping the sheep from mingling with his own, with no intention of converting them to his own use, it would not be a conversion. It would be evidence, with other circumstances, to be submitted to the jury, from which they could infer an intention to convert them to his own use. His conversation with Shanafelt might have explained his acts, and might have repelled the inference which the jury would have been warranted in drawing from his acts done. The conversation should have been received for the jury to consider with the other testimony. The plaintiff had laid the foundation for this testimony by showing, by Shanafelt and the witness Gray, that defendant was to call again the next morning to ascertain further whether the sheep were Shanafelt's or not. The next morning they bring him back to Shanafelt at a certain hour, but will not let the witness state the conversation which then occurred between them. It was proper cross-examination, as well as admissible as part of the res gest�. The reason stated by Mr. Howell is evidently based upon its admissibility as a part of the res gest�. The witness Brown was sworn, examined, and cross-examined upon a former trial of this case. He was a non-resident of the state, and at the time of trial he resided in Indiana, and was absent from the jurisdiction, and beyond the reach of subp na. His attendance could not be compelled. His testimony given upon the former trial was properly received in evidence. Howard v. Patrick, 38 Mich. 795; Stewart v. Bank, 43 Mich. 257, 5 N.W. 302; Labar v. Crane, 56 Mich. 585, 23 N.W. 323. His testimony had been taken down by a stenographer, and no question was made as to its having been correctly and accurately taken and transcribed.

The defendant was introduced as a witness in his own behalf. He narrated where he found the sheep driven by Gray on the evening testified to by him; that he was south of the corners called "Mosher's Corners;" that it was nearly dark; that his sheep were marked with blue chalk, and it was too dark to see the chalk-marks; that he took Gray into his buggy, and drove through his flock so as to turn them...