Holman v. Edson

• Decision Date: 04 March 1908
• Citation: 69 A. 143,81 Vt. 49
• Court: Vermont Supreme Court
• Parties: HOLMAN v. EDSON.

69 A. 143

81 Vt. 49

HOLMAN

v. EDSON.

Supreme Court of Vermont. Orange.

March 4, 1908.

Exceptions from Orange County Court; James M. Tyler, Judge.

Action by Charles L. Holman against George S. Edson. Judgment for plaintiff, and defendant brings exceptions. Reversed and remanded.

Argued before ROWELL, C. J., and WATSON, HASELTON, POWERS, and MILES, JJ.

M. M. Wilson and R. M. Harvey, for plaintiff. Wm. Batchelder and E. W. Smith, for defendant.

MILES, J. This is an action on the case for alleged negligence in the care of plaintiff's horse. The negligence alleged was that the defendant kept the horse in a stall having a hole in it on the right-hand side as one entered it, in which the horse received the injury resulting in its death. The defendant denied that there was any such hole, and claimed that the injury to the horse resulted in a different manner from that claimed by the plaintiff, and without his fault. The plaintiff testified in his own behalf, and, among other things, testified on direct examination, and without objection, that the hole "had blood around it, and somewhere it had run down on the boards, and it was where his horse was through it." This testimony was immediately followed by the following question and answer, viz.: "Q. You don't know that? A. I understood that. That was what they told me." To this answer the defendant objected and excepted in form, and, if the exception was to be limited to that alone, no error would exist; but the defendant claims that the testimony of the plaintiff above quoted is covered by the objection and exception. That testimony consisted of the statement of a fact as of the plaintiff's own knowledge, which, if true, was admissible; but the question and answer objected to brought out the fact that it was not of the plaintiff's own Knowledge, but was merely hearsay. Until that fact was brought out, the defendant was not called upon to object to save his rights; but the exceptions show that as soon as it was called out the defendant did object and except. While the form of the exception was to the answer, the case shows that it was in fact to the quoted testimony of the plaintiff next preceding it, and counsel on both sides so treated it in their arguments. They have also treated such testimony as not responsive to any question asked by either counsel, and, in considering the same, we have treated it as counsel have.

The rule is well settled in this state that an improper answer by a witness to a...