Henderson v. Coleman

• Decision Date: 09 May 1911
• Docket Number: 606
• Citation: 115 P. 439,19 Wyo. 183
• Parties: HENDERSON v. COLEMAN ET AL
• Court: Wyoming Supreme Court

115 P. 439

19 Wyo. 183

HENDERSON v. COLEMAN ET AL

No. 606

Supreme Court of Wyoming

May 9, 1911

[Copyrighted Material Omitted]

Rehearing Denied June 30, 1911, Reported at: 19 Wyo. 183 at 236.

ERROR to the District Court, Sheridan County; HON. CARROLL H PARMELEE, Judge.

The material facts are stated in the opinion.

E. E. Enterline and Ridgely & West, for plaintiff in error.

The verdict and judgment rendered in this case is most unreasonable. It will be noticed that the right of plaintiffs to recover depended mostly, if not altogether, upon evidence that the trespass had been committed by persons claimed to have been in the employ of the defendant. Much of the testimony related to declarations of one Sherwin, who the plaintiffs claimed was the herder in charge of the trespassing sheep, and they sought to establish his employment and agency by testimony of his declarations. Such testimony was objected to for the reason that Sherwin's acts and declarations were not binding upon the defendant unless and until it was first shown that they were performed and made in the line of his authority and while he was acting for the defendant. No authority can be found to sustain the rulings of the trial court upon that testimony. Agency cannot be proved as against others than the alleged agent, by his declarations, and evidence of the declarations of an agent is not admissible to prove the extent of his authority. (10 Ency. Ev. 15-18.) Assuming for the sake of argument that there was some evidence tending to establish Sherwin's agency, the admitted testimony must have been prejudicial to the defendant, who denied that Sherwin was in his employ and that he ever authorized him to go upon the lands in question with any of his, (the defendant's) sheep. The question of agency was therefore clearly in dispute, and the plaintiffs were permitted to prove agency over objection by hearsay testimony of the most prejudicial kind. (Armour v. Ross, 110 Ga. 403; Osgood v. Pacey, 23 Ill.App. 116; R. R. Co. v. Johnson, 55 Kan. 344.) Not only did the defendant testify that Sherwin was not his agent, but he introduced other evidence tending to show that the trespassing sheep did not belong to him, but belonged to one James Shepardson, and that the herder in charge of such sheep was in the employ of Shephardson. Over objection also the plaintiffs were permitted to prove declarations of two other persons, Zimmerman and Heard, whom they claim were in the employ of the defendant. The declarations of these parties should have been excluded for the same reasons urged for the exclusion of Sherwin's declarations. Some of the testimony tended to prove a different trespass, and it was no doubt offered for the purpose of showing that the defendant authorized it. It was certainly prejudicial to the defendant to receive in evidence declarations made by Zimmerman, in which he stated that the defendant had told him to put the sheep on the lands of the plaintiff, and that he was not to take them away until the defendant came back.

The evidence that was admitted for the purpose of showing the intention of the plaintiffs and what they did with reference to marketing their cattle claimed to have been driven from the land was admissible, if at all, upon the theory that the plaintiffs were entitled to recover special damages. But no special damages are alleged in the petition. It is not alleged that the plaintiffs intended to market their cattle in the fall of 1907, as they were permitted to prove, nor that they were unable to market the same; nor is it alleged what, if any, damages resulted by reason of their being unable to place said cattle upon the market. It is not alleged in the petition that the plaintiffs had to gather the cattle, nor that they did gather them, or were put to any expense in gathering them. It is not alleged in the petition that it was necessary for the plaintiffs to feed hay to their cattle, nor that they did feed hay to them. All the evidence relative to these matters of damage should have been excluded. Special damages are those arising directly, but not necessarily, or by implication of law, and cannot be recovered unless specially alleged. (1 Curr. Law, 861; 3 Id. 1095; 5 Id. 932-934; 7 Id. 1068-1069; 9 Id. 912-914; 5 Ency. Pl. & Pr. 719; Treadwell v. Whittier, 80 Cal. 575; Campbell v. Cook, 86 Tex. 630; R. R. Co. v. Emmert, 53 Neb. 237; Williams v. R. R. Co., 18 Utah 210; Eisele v. Oddie, 128 F. 941; Ry. Co. v. Levy, 118 Ill. 525; O'Connor v. Pendergast, 99 Ill.App. 531; Harper v. R. R. Co., 17 Mo.App. 604; Ry. Co. v. Messick, 35 Tex. Civ. App. 591; R. R. Co. v. Hanberry (Ky.), 66 S.W. 417; Gordon v. Ry. Co. (Mont.), 104 P. 679; Cosgriff v. Miller, 10 Wyo. 190.) It will probably be contended that the case of Cosgriff v. Miller is authority for the admission of evidence on the question of value of hay fed to the cattle. An examination of the opinion in that case, however, discloses that the allegations of the petition were much broader than in the petition in this case.

Testimony was erroneously introduced over objection giving conversations had with the defendant. There was no evidence tending to show that the plaintiff A. L. Coleman owned any lands at the time his conversation with the defendant occurred. Necessarily the defendant could have had no reference to a trespass upon these lands by what he said to Coleman in 1906. The testimony of the witness Chabot relative to a similar conversation with the defendant and including declarations of the defendant with reference to other trespasses should have been excluded. It was error to permit the plaintiffs to prove the value of the pasturage for their cattle for the entire summer and season in which the trespass was alleged to have been committed. The plaintiffs had their cattle upon the lands in June and July prior to the trespass, and the evidence did not tend to show that the sheep were upon the lands during the entire season. It is to be presumed that some of the lands were depastured by the cattle of the plaintiffs; and yet the jury were permitted to estimate damages upon the theory that defendant had deprived the plaintiffs of the use of the pasturage during the entire season. The testimony to the effect that the lands are valuable for a sheep camp was clearly inadmissible. The evidence concerning the value of the sheep of defendant was probably introduced for the purpose of showing the financial worth of the defendant. While authorities can be found which sustain that kind of proof where exemplary damages are recoverable, we contend that it is not the proper method to prove how much a person is worth. Financial standing depends upon assets and liabilities. One might own considerable property, and yet he might be indebted or the property might be incumbered, so that the value of the property proven would in no sense prove what he was worth.

On cross-examination the defendant was compelled to testify as to the contents of an affidavit he had made with reference to his whereabouts at the time the summons was said to have been served upon him. To impeach the testimony of the defendant as to where he was about the time mentioned, the plaintiffs introduced a portion of his affidavit filed in support of objection to the jurisdiction of the court, and also the return made by the alleged special deputy sheriff upon the summons in the case. This was a novel way to impeach the defendant. An examination of the record will show that the deputy appointed himself. The trial court admitted the return of the alleged officer which on its face showed it to be absolutely invalid, and also an alleged affidavit which was of no force for the purpose of impeaching the defendant. The evidence was clearly incompetent and prejudicial to the defendant.

In view of the fact that no special damages were pleaded an instruction requested by the defendant to strike all the evidence relative to special damages should have been given, and it was error to refuse it. Other instructions offered by the defendant were erroneously refused. One of them stated correctly the rule concerning agency. The court should have instructed the jury as requested by the defendant that the acts and declarations of the alleged employees of the defendant were not to be considered. The instruction requested by the defendant to withdraw from the jury the evidence given by the witness Hellmer with reference to the value of the land for grazing purposes in connection with the adjoining range should have been given. He testified that the premises in question used in connection with the adjoining range was worth from $ 1000 to $ 1200 for pasturage purposes from July 1st to September 1st, and on crossexamination testified that the lands in question were only worth from $ 300 to $ 400 for that time. By permitting the evidence as to value in connection with the adjoining range to remain in the record, it was no doubt considered by the jury in estimating the damages, and that was clearly prejudicial to the defendant.

The instruction that was given stating that all persons are bound to take notice of the stones and marks of the Government survey, and that the plaintiffs were not required to otherwise mark the boundaries of their lands was not based upon any evidence in the record. It was therefore improperly given. Instruction No. 6 assumes that the sheep of defendant were upon the lands in question and depastured the same. The court had no right to assume in an instruction any of the disputed facts. The court further instructed the jury by instruction No. 32 that if they found from the evidence that the defendant, either by himself or his employees, in pursuance of their employment, drove or permitted to be driven upon the lands in question the sheep...