Jones v. Metcalf
| Decision Date | 04 January 1923 |
| Parties | MASON JONES v. E. H. METCALF |
| Court | Vermont Supreme Court |
May Term, 1921.
ACTION OF TORT against a game warden, for seizing and detaining a trap, belonging to plaintiff, and a bear caught therein. Pleas, the general issue and special matter in justification. Trial by jury in the Brattleboro Municipal Court, Addison E Cudworth, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.
Reversed and remanded.
Herbert G. Barber and C. Menzies Miller for the defendant.
Neil D. Clawson for the plaintiff.
Present WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.
The plaintiff had judgment in the court below on the verdict of a jury. The defendant brings the case here on exceptions saved to the exclusion of certain evidence and to certain portions of the court's charge. The exceptions all grow out of a single question relating to the right of a county fish and game warden to seize and detain for evidentiary purposes a trap illegally set and a wild animal caught therein. In the circumstances the exceptions do not require separate treatment.
In October, 1919, the plaintiff set a bear trap in the "Sherwin pasture" in the town of Stratton, to which a chain and clog were attached. At some time before the 14th of October, the bear in question got into this trap but had succeeded in getting away from the place where it was set taking the trap, chain and clog along with it. At some distance from the place where the trap was set the chain became entangled so that the bear had been unable to make any further escape when discovered by members of the defendant's party. The defendant was then the fish and game warden for Windham County. Having information that there were bear traps set in the vicinity of Stratton in violation of law, he set out in company with two deputy wardens and a guide to make an investigation. Their search brought them to the Sherwin pasture in the afternoon of October 14.
They discovered the place where the trap had been set and indication on the ground that some animal had gotten into it and dragged it away. Continuing the search, one of the party, not the defendant, discovered the bear in the trap and had shot it before the defendant arrived on the scene. The latter directed his assistants to carry the bear to their automobile, some two or three miles away, he carrying the trap and chain. The bear and trap were taken to Brattleboro, where the defendant resides. He retained possession of the trap and left the bear at a slaughter house to be properly dressed and await the appearance of a claimant. He caused a notice of the seizure to be published in the next issue of the Brattleboro Reformer, with a view, as he testified, of discovering the owner. The notice reached the plaintiff and on October 18 he went to Brattleboro where he met the defendant and Mr. Gibson, the State's attorney of Windham County, at the office of the latter. He identified the trap as his and the one he had set in the Sherwin pasture. On his demand the trap was delivered to him and the defendant went with him to the slaughter house where he received the hide of the bear. The carcass was not taken, as the meat was found to have spoiled so that it was unfit for food. The defendant made no claim of ownership of the trap or bear, and after the interview at the office of the State's attorney did nothing to keep the trap or any part of the bear from the plaintiff. The latter claimed that the hide and meat of the bear were spoiled through the fault of the defendant and he was permitted to recover damages for the loss of the animal and compensation for time and expenses in securing his property after it was taken by the defendant.
The court practically directed the jury to find for the plaintiff so far as taking of the trap was concerned, the only disputed question left to the jury being whether the return of the trap was accepted in full satisfaction of damages. Respecting the taking of the bear, the case was submitted on the theory that the plaintiff could recover damages therefor if the jury found that the bear was entrapped in such a manner as to deprive it of the power to escape and go at large, and also found that the plaintiff had not abandoned the pursuit before the taking--questions concerning which the evidence was conflicting. The defendant offered to show what was discovered at the place where the trap was set indicating that it was not set in the manner required by law--that it was not guarded as required by the statute--which was excluded as being immaterial. The court instructed the jury that if they found from the evidence that the plaintiff was the owner of the trap and that it was taken away by the defendant (facts not in dispute) and was treated as the undisputed evidence shows it was treated, it was an invasion of the plaintiff's rights; and further that neither the setting of the trap in an unlawful manner, nor the taking of a wild animal in the trap so set, makes either the game captured or the trap contraband and subject to seizure as a pure matter of right. The defendant was permitted to testify that he took the trap and bear for the purpose of conserving them as evidence to present to the prosecuting officer of the county and that he presented the evidence to the State's attorney. In the same connection he was also permitted to testify that his only motive for taking them, other than to conserve the evidence, was to secure the identity of the person who owned the trap. This line of evidence was received as bearing solely on the question of exemplary damages and the jury was instructed to so regard it. Exceptions were saved to the court's rulings so far as they were adverse.
It will be seen that the case presents two separate though interrelated questions: (1) The right of property in a wild animal captured in a manner forbidden by law as against a fish and game warden who, acting in his official capacity, has taken it into his possession with a view of securing evidence for a prosecution of the offender. (2) The right of such game warden to seize without a warrant property of the offender employed in the unlawful capture and retained for a like purpose. The statute, the violation of which is relied upon as a defense to this action, provides: G. L. 6431. In considering the questions presented we are to assume that the plaintiff had not complied with the requirements of this statute. What effect would such failure have upon the respective rights of the parties?
The State fish and game commissioner is authorized to appoint county fish and game wardens (G. L. 6358) who are required to enforce all provisions of Title 38 of the General Laws, of which the section in question is a part. G. L. 6359. It was pursuant to this requirement that the investigation which led to the discovery and seizure of bear and trap was conducted. Among the duties expressly laid upon such wardens is that they "shall seize fish, birds and quadrupeds taken or held in violation of a provision of the title." Although this provision by itself is broad enough to cover the seizure of the bear, benefit of it is not claimed, probably with reason on account of the definition of quadrupeds found elsewhere in the title. G. L. 6332. In any event, the defendant is not entitled to more than was claimed below, as he seeks a reversal, and the inquiry is confined to his general powers referred to above.
The plaintiff's right to maintain an action for damage on account of the bear stands differently than his right of action respecting the trap. His title to the trap was unquestioned and his rights were those of unqualified ownership; while, if he had any property rights in the bear, they were such as arise from having reduced the animal to possession.
The rule is everywhere recognized that animals ferae...
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