Hawley v. Bond

• Decision Date: 29 November 1905
• Citation: 105 N.W. 464,20 S.D. 215
• Parties: HAWLEY v. BOND.
• Court: South Dakota Supreme Court

105 N.W. 464

20 S.D. 215

HAWLEY v. BOND.

Supreme Court of South Dakota

November 29, 1905

Appeal from Circuit Court, Minnehaha County.

Action by Lena M. Hawley against Amon P. Bond. From a judgment for plaintiff, defendant appeals. Affirmed.

Joe Kirby, for appellant. Bates & Parliman, for respondent.

CORSON J.

This is an action in claim and delivery to recover possession of a certain cow alleged to have been taken and detained by the defendant as constable under an execution issued upon a judgment against plaintiff's husband. The verdict and judgment being in favor of the plaintiff, the defendant has appealed.

The only errors assigned which we deem it necessary to consider are: (1) That the court erred in overruling the objection of the defendant to a question propounded to the plaintiff while testifying in her own behalf; (2) in overruling defendant's objection to a question propounded to witness L. C. Hawley; (3) in denying defendant's motion to direct a verdict in favor of the defendant made at the close of the trial; *** (5) in accepting the general verdict without an answer to the interrogatory submitted to the jury being returned with their general verdict.

The plaintiff and L. C. Hawley were husband and wife, and plaintiff claims to be the owner of the cow by virtue of a purchase made of the same and paid for out of her own individual means. It is claimed by the appellant that the cow belonged to the husband, L. C. Hawley, and therefore was subject to be taken upon an execution issued upon a judgment recovered against him. It will thus be seen that the material question in the case was as to who was the owner of the cow at the time of its seizure by the constable. The plaintiff as a witness on her own behalf, was asked by her counsel the following question: "Who was then the owner of that cow?" The appellant objected to the question for the reason that it called for the conclusion of the witness and not the statement of a fact. Objection was overruled, and the appellant excepted. Her answer was, "It was my cow." It is contended by the plaintiff in support of the judgment of the court below that the question was clearly competent as coming within the exception to the general rule that a witness can only testify to facts and not conclusions of law. We are inclined to take the view that the plaintiff is right in her contention. In the class of cases involving the ownership of personal property, the authorities seem to sustain the position that such a question may be asked. In the case of De Wolf v. Williams, 69 N.Y. 621, which seems to have been very analogous to the case at bar, the Court of Appeals of New York affirmed the decision of the lower court in holding that a similar question was proper and in the statement of the case by the reporter, it being a memorandum opinion, he says: "After plaintiff had testified that she went to housekeeping, *** that she took into the house some furniture which she bought before her marriage, and bought some other articles, she was asked 'Whose was the property in the house 516 Pacific street?' This was objected to 'as a question of law.' The objection was overruled, and witness answered that it was hers. Held, that the question and answer were proper; that the title to property was ordinarily a simple fact, to which a witness having the requisite knowledge could testify to directly." This decision is referred to and cited with approval in Nicolay v. Unger, 80 N.Y. 54, and in its opinion the court says: "There are cases which hold that, where the question involves a fact clearly within the knowledge of the witness and not the expression of an opinion on the facts proven, it is admissible. De Wolf v. Williams, 69 N.Y. 621; Knapp v. Smith, 27 N.Y. 277; Sweet v. Tuttle, 14 N.Y. 465; Davis v. Peck, 54 Barb. 425." The Supreme Court of Iowa, in Murphy v. Olberding, 107 Iowa, 547, 78 N.W. 205, holds a similar doctrine and says: "In response to a question from his counsel, defendant was permitted to state that the wire belonged to him. This is said to be a conclusion of the witness and therefore inadmissible. We have recently held that such conclusions are admissible; that the question calls for a fact as well as an opinion." And in support of the same it cites a large number of Iowa authorities. It would seem therefore that the question propounded to the witness in the case at bar was a proper one, and that the court committed no error in overruling appellant's objection to the same.

The same rule applies to the question propounded to the husband, L. C. Hawley, as follows: "State whether you made the purchase of this cow at the request of the plaintiff, Mrs. Hawley." It may be presumed that upon a cross-examination all the facts and circumstances relating to the ownership by the plaintiff and the purchase of the property by her husband as her agent were elicited, and the jury therefore not only had the statements of the witnesses, but the facts and circumstances attending the purchase of the cow, from which to determine the ownership of the property. The cases cited by appellant in support of his contention are clearly distinguishable from the case at bar, as is well illustrated by the case of Nicolay v. Unger, supra, in which the court held, for the reasons therein stated, that a similar question was not competent, and therefore the objection to the same should have been sustained.

It is further contended by the appellant that the court erred in refusing to direct a verdict at the conclusion of the...