Elias Lyman v. C. W. James
| Decision Date | 10 February 1914 |
| Citation | 89 A. 932,87 Vt. 486 |
| Parties | ELIAS LYMAN v. C. W. JAMES |
| Court | Vermont Supreme Court |
January Term, 1914.
TROVER AND TRESPASS for an automobile, Chittenden County, March Term, 1913, Waterman, J., presiding. Assessment of damages by jury, on remand for that purpose only. See 85 Vt. 355. The defendant excepted.
Assessment affirmed.
Furman & Webster for the defendant.
Max L. Powell for the plaintiff.
Present POWERS, C. J., MUNSON, WATSON, HASELTON, and TAYLOR, JJ.
This is an action for the taking and conversion of an automobile. The question of liability has heretofore been determined in favor of the plaintiff. See 85 Vt. 355. The cause was remanded for the assessment of damages. The assessment has been made by a jury, and the case now comes here on exceptions, relating to the assessment proceedings taken by the defendant.
The defendant, who attempted to justify as an officer acting under a writ of attachment, took the automobile in question from the possession of one Hill, May 28, 1910, and kept it until on or about August 1, 1910, when it was returned to the plaintiff and went into his possession and control.
The car was a Chalmers-Detroit touring car of the 1910 model, and was purchased by the plaintiff November 15, 1909, of Hill, who was in the automobile business. Immediately upon its purchase, under an arrangement between plaintiff and Hill the car went back into Hill's possession with the right on his part to use it for demonstrating purposes and in the livery business; and from the date of purchase until May 28, 1910, when it was taken by the officer, Hill had possession of the car, and used it for demonstrating purposes and occasionally rented it for hire conformably to the arrangement referred to. When the car was released from the possession of the defendant it was, by direction of the plaintiff, turned over to Hill who took possession of it in behalf of the plaintiff and continued to use it as before under the arrangement referred to which still existed.
The plaintiff testified that he put the car into the hands of Hill to run and to sell and that by the conversion he was deprived of the opportunity of selling. The testimony was objected to on the ground that the loss of rental and the loss of sale were not proper elements to be considered in the assessment of damages. But the evidence was received as bearing upon the question of damages for the detention of the car. To the ruling of the court receiving the evidence the defendant excepted. We think that the loss of rental and the loss of opportunity to sell were proper to be considered in the assessment of damages since the declaration as amended alleged these special elements of damage. Luce v. Hoisington, 56 Vt. 436.
Whether the evidence as to loss of sale, meaning of course the loss of opportunity to sell at an advantageous time, was definite enough to be admissible, or was mere conjecture, is a question not raised.
The defendant in cross-examination of the plaintiff offered to show that Hill was owing the plaintiff and that the rentals received by Hill were to be applied on this debt, claiming that thus the rentals belonged to another person than the plaintiff.
But the offered evidence was immaterial on the question of damages, for it did not matter whether the plaintiff was to be paid in cash or in credits. The evidence was excluded and properly so.
If the offered evidence bore upon any other question than that of damages it was immaterial, for no other question was before the court on the hearing now under review. And though the witness was a party, and though he was under cross-examination, no evidence in chief could be received relating to any other question than that of damages. The right of inquiry for the purpose of discrediting the witness was not infringed by the ruling for an answer either way would have had no discrediting or impeaching effect.
The testimony of the plaintiff tended to show that the 1911 model of the Chalmers-Detroit automobile came onto the market so that it was subject to inspection early in August, 1910. The plaintiff asked one Pappin this question: "What would you say would be the natural depreciation of a Chalmers-Detroit car, 1910 model, purchased in November, 1909, and used to May 28th, 1910, simply for such demonstration purposes as were necessary, the car being returned to the owner about the middle of August, 1910, and after the 1911 model was on the market, and subject to inspection by purchasers, for ordinary demonstration purposes by a dealer?"
It was not...
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