Fleming v. McClaflin

• Decision Date: 28 May 1891
• Docket Number: 147
• Citation: 27 N.E. 875,1 Ind.App. 537
• Parties: FLEMING ET AL. v. MCCLAFLIN ET AL
• Court: Indiana Appellate Court

27 N.E. 875

1 Ind.App. 537

FLEMING ET AL. v. MCCLAFLIN ET AL

No. 147

Court of Appeals of Indiana

May 28, 1891

From the Fountain Circuit Court.

Affirmed, at the costs of the appellants.

W. L Rabourn, for appellants.

W. B Durborow, for appellees.

OPINION

ROBINSON, J.

The appellants, who were the plaintiffs in the court below commenced this action against the appellees upon a promissory note which appellants held by assignment.

The appellees answered in four paragraphs: 1st. General denial. 2d. That the note was given for the unpaid balance of the purchase-price of a stallion, named Bonner, sold the appellees by Nicholas Lape, the original payee in the note, warranted to be twelve years of age, and to have the following pedigree: "Bonner was sired by a stallion called Robert Wilson of Kentucky, and Robert Wilson was sired by Rysdyke's Hambletonian;" that appellee believed the warranty to be true, but it was false. The 3d paragraph contained similar averments to the 2d, in its general statements, and alleged false and fraudulent representations by the seller regarding the age and pedigree of the horse; that appellees relied thereon, and that they were false. 4th. Payment.

Appellants demurred to the second and third paragraphs of the answer, which demurrer was overruled, and then replied to the answer by general denial.

The cause was tried by a jury, resulting in a verdict for the appellees. There was a motion for a new trial, which was overruled and excepted to.

The errors assigned by the appellants are:

1st. The court erred in overruling appellants' demurrer to the second paragraph of appellees' answer.

2d. The court erred in overruling appellants' demurrer to the third paragraph of appellees' answer.

3d. The court erred in overruling appellants' motion to suppress the deposition of M. A. Randall, and parts thereof included in appellants' motion filed March 5th, 1889.

4th. The court erred in sustaining the appellees' motion to amend the second and third paragraphs of the answer.

5th. The court erred in overruling appellants' motion to suppress the deposition of M. A. Randall, filed May 8th, 1889.

6th. The court erred in overruling appellants' motion for a new trial.

The third, fourth and fifth assignments of errors are proper causes for a new trial, and were made such in the motion, and properly come under the error assigned in overruling the motion for a new trial.

We can not consider the first and second assignment of errors, to wit, error in the court in overruling the demurrer to the second and third paragraphs of the answer. There is no available error in this court saved in the record. From the record it does not appear that the ruling of the court on the demurrer to these answers was excepted to.

The fifth, sixth and seventh causes for a new trial raise the question of the alleged error in the trial court in permitting the appellees to read in evidence certain parts of the deposition of M. A. Randall on the trial of said cause, taken on behalf of the appellees, and in overruling appellants' motion to suppress said deposition, and suppress and strike out certain parts thereof.

The testimony of this witness, on direct examination, contained twenty-two questions and answers.

The court sustained appellants' motion as to all of the questions and answers on direct examination except 1, 2, 3, 4, 5, 6, 10, 11, 12, 13, 20, 21 and 22. There was no objection to other parts of the deposition, and these questions and answers, with the cross-examination and re-direct examination, were read in evidence on the trial of the cause.

The first four questions in the direct examination were merely preliminary and introductory, and, in connection with the fifth, show the qualification of the witness to testify as to facts afterwards elicited, and to show that upon questions concerning the pedigree in horses the witness is an authority.

The witness then answered the questions hereinafter set out:

"Ques. 5. If you know of a certain horse known as Rysdyke's Hambletonian you may so answer? Ans. I know of him through trotting registers, through stud books, through advertisements, and through an intimate acquaintance with his get.

"Ques. Where was said Rysdyke's Hambletonian sired and kept? Ans. In Orange county, New York, all his life; was never out of the county.

"Ques. 10. What relation, if any, was this horse, Robert Wilson, to Rysdyke's Hambletonian? Ans. None at all.

"Ques. 12. What acquaintance had you with the horse known as Hamerick's Hambletonian? Ans. I saw him exhibited several times at the State fair is all.

"Ques. 13. What, if any, relation was the horse known as Hamerick's Hambletonian to Hambletonian? Ans. None at all.

"Ques. 20. What, if any, acquaintance have you with horse known by the name of Bonner? Ans. There are several horses in the Register called Bonner; there is one Satellite; but the only one I know is one Robert Bonner got by a horse called Mambennello; he was bred in Bourbon county, Kentucky; stood a while there; was brought to Rush county, and stood a while, and was taken back to Bourbon county, and died there; I brought him myself to Rush county.

"Ques. Was this Bonner ever owned by W. P. Swain? Ans. No, sir."

The appellants assail the admission of this evidence with much vigor, and ask us to compare the evidence that was permitted to go to the jury with the suppressed part of the deposition. That we can not do. The suppressed part of the evidence is not in the record. The question must be determined by the evidence that the court permitted to go to the jury. From the testimony of this witness, in answer to questions one, two, three and four, which are preliminary and introductory, it appears that the witness resided in the city of Indianapolis, and had been engaged for ten years in the publication of the Western Sportsman; was author of the American Pacing Register, which he was compiling for publication; that he had experience in the pedigree of horses in writing about them, and from being in the horse business for at least forty years. To that part of the testimony of this witness in which he testifies from personal knowledge there can be no objection, but the objection is made to the portion of the testimony in which the witness testifies to his experience, knowledge and skill in the breeding of horses, and in the pedigree of horses. Upon the facts stated in his testimony, the appellees contend that the evidence was admissible for the reason, among others stated, that it was expert testimony, or that it was evidence of facts which are the result of scientific knowledge, and was not incompetent as being hearsay evidence or information gleaned from books or records.

In arriving at a conclusion upon this question we think it proper to take into consideration the fact that the subject of pedigree in horses, the breeding of horses, their speed, sire, improvement in the stock, and other matters connected with their development and breeding, has become a business of much importance; that with many it has become a profession, requiring experience, skill and knowledge; and that breeders, agriculturists and stockmen are largely engaged in it; that journals are published, books written, and records and registers are kept to promote the business; and that it requires skill, knowledge and science to understand and become experts in the business, which are obtained not only from personal experience, but from books, journals, records, registers and other sources of information. A medical expert may testify as to a knowledge of facts cited by medical works, and yet the books from which he obtained the knowledge of the facts about which he testifies are not admissible. Experts may testify as to any art, science, trade or mystery.

In the case of Indiana, etc., R. W. Co. v. Hale, 93 Ind. 79, it is said: "The general rule is that a witness must not give his opinion, but must testify...