King v. Karpe

• Decision Date: 13 May 1959
• Citation: 170 Cal.App.2d 344,338 P.2d 979
• Court: California Court of Appeals Court of Appeals
• Parties: Helen KING, Plaintiff and Respondent, v. A. H. KARPE, Defendant and Appellant. Civ. 5690.

Page 979

338 P.2d 979

170 Cal.App.2d 344

Helen KING, Plaintiff and Respondent, v. A. H. KARPE, Defendant and Appellant.

Civ. 5690.

District Court of Appeal, Fourth District, California.

May 13, 1959.

Hearing Denied July 8, 1959.

Deadrich, Bates & Stewart, Kenneth H. Bates, Bakersfield, for appellant.

Conron, Heard & James, Calvin H. Conron, Jr., Bakersfield, for respondent.

STONE, Justice pro tem.

This is an appeal by defendant-appellant from a judgment entered upon a jury verdict in favor of plaintiff-respondent for damages by reason of the destruction of a registered Hereford cow. The defendant was doing business under the name of A. H. Karpe's Greenfield Hereford Ranch, and raised, bought, and sold registered Hereford cattle and held sales at his ranch. He owned a particularly fine bull which went by the name of Baca Duke 2nd. In 1952, at one of defendant's cattle sales, plaintiff purchased a registered Hereford cow, one Domino Belle, which was carrying a calf the get of Baca Duke 2nd. Plaintiff paid $2,200 for the animal.

The first calf of Domino Belle was dropped in July of 1952. After the first calf was dropped, plaintiff and defendant entered into an agreement by which Domino Belle was returned to defendant's ranch, for breeding to Baca Duke 2nd, and plaintiff and defendant were to share ownership in the calf. The cow was bred twice before coming safe with calf, and was then taken back by plaintiff to her ranch; the second calf, named 'Duke Boniface', was dropped in October of 1953. After this event, plaintiff and defendant again entered into the same agreement with respect to the breeding services of Baca Duke 2nd, whereupon the cow was returned to defendant's ranch, and was bred on three occasions to Baca Duke 2nd before becoming safe with calf. The third calf, named 'Duke Boniface 2nd', was born in January of 1955. Later in 1955 a similar arrangement was again made between plaintiff and defendant, for the further breeding of Domino Belle to Baca Duke 2nd. The record indicates that nine separate attempts were made in 1955 to get the cow with calf, all without success. After these unsuccessful attempts, defendant placed Domino Belle with a group of other cows, all identified as 'hard breeders', for special attention and care, in an attempt to restore her to brood cow status.

Tattoo marks are placed upon Hereford cattle as a part of the ordinary custom and practice in that business. It is the practice for the ranch owner to tattoo a number on each calf born on his ranch, selecting the numbers anew each year. Thus, the first calf dropped on a ranch in each year might be tattooed '01', the next '02', and so on. This number is usually tattooed in the right or left ear, and the same number is painted on the base of the horn. The letter 'L' or 'R' is used to indicate the left, or right ear. Domino Belle was identified by the tattoo number L-03. During all of the period in question, defendant had continued to buy and sell cattle, and one cow he purchased had the tattoo mark L-03. This cow was on defendant's ranch when Domino Belle was there.

In 1956, the hard breeding cows were examined by Dr. Irwin, a veterinarian, to cull out of the herd those that were deemed to be incapable of restoration to brood cow status. Each cow was physically examined, and the determination then made as to whether the cow was ready for breeding or was suitable for further treatment, or was incapable of being restored to brood cow status, and therefore designated for the slaughterhouse. Defendant Karpe was present at this examination of Domino Belle, and Dr. Irwin, the examining veterinarian, was assisted by an employee of defendant, a Mr. Becker. Eighteen of the group were deemed to be beyond reasonable expectation of recovery to brood status, and were sent to the slaughterhouse. As indicated, the cow of plaintiff, Domino Belle, was in this 'hard breeder' group, identified only by the tattoo mark L-03. When she was examined, the veterinarian was of the opinion that she was incapable of restoration to brood status. Defendant, believing that Domino Belle was his L-03 cow, included her in the batch consigned to the slaughterhouse. The mistake was not discovered until approximately one month later when plaintiff came to the ranch in August, 1956, and all parties discovered that Domino Belle must have been sent to the slaughterhouse, since defendant still had his own L-03 cow. The jury awarded plaintiff $5,000 damages and defendant appeals.

Defendant presents five grounds of appeal, the first and second of which will be considered together because the answer to each is the same. Defendant urges first that it was error for the court to permit counsel to comment on the failure of defendant to produce a former employee, and second, that it was error for the court to instruct the jury that it could consider the failure of defendant to produce the employee as a witness as presenting weaker and less satisfactory evidence than was available.

The factual situation reflected by the record is that on one day defendant's veterinarian examined approximately 70 'hard breeder' cows, plaintiff's cow being one of them. He could not remember examining the particular cow and relied on and testified from the records made at the time of the examination. It was impracticable for the veterinarian to write while examining the cows so a herdsman named Becker made notes as dictated by the veterinarian. The notes were later copied in the interest of legibility. However, there was a discrepancy between the original notes concerning Domino Belle and the copy thereof. It also appeared that an erasure had been made on the original notes and it appeared that one notation might have been added to the original after it had been completed. Becker, the man who made the original notations as dictated by the veterinarian, was not called as a witness by the defendant. Plaintiff developed that Becker had been in defendant's employ until a month before the trial and that he was in San Jose at the time of trial. Plaintiff commented to the jury that whereas the veterinarian relied entirely upon the notes taken and because there was a discrepancy in the notes, Mr. Becker who made the notes should have been called as a witness. The trial court saw the evidence in the same light and overruled defendant's objection to such comment, and at plaintiff's request gave an instruction on the subject taken from the last paragraph of BAJI No. 30, which reads as follows:

'If and when you should find that it was within the power of a party to produce stronger and more satisfactory evidence than that which was offered on a material point, you should view with distrust any weaker and less satisfactory evidence actually offered by him or her on that point.'

The testimony of the veterinarian was an essential element in defendant's case. Had he testified concerning facts within his own knowledge we would concede appellant's point, but he depended upon the records made by Becker, which were open to question. Therefore, the comment of counsel and the instruction of the court did not constitute error. C.C.P. Sec. 2061, subdivisions 6 and 7; Hays v. Viscome, 122 Cal.App.2d 135, 141, 264 P.2d 173, 39 A.L.R.2d 1435; People v. Beal, 116 Cal.App.2d 475, 479, 254 P.2d 100.

Defenda...