Quesnel v. Smith

• Decision Date: 06 October 1936
• Citation: 187 A. 374,108 Vt. 373
• Parties: J. AVILA QUESNEL v. HERMAN F. SMITH
• Court: Vermont Supreme Court

187 A. 374

108 Vt. 373

J. AVILA QUESNEL v. HERMAN F. SMITH

Supreme Court of Vermont

October 6, 1936

May Term, 1936.

Exception to Admission of Answer Taken Too Late---Inadequate Briefing.

1. Where witness' answer to a question is responsive and objection could have been seasonably interposed, but is not made until after answer is given, exception to admission of answer is too late to be availing.

2. Where no authorities are cited, no grounds are stated, and no argument on a point is submitted, briefing is inadequate, and question is not for consideration in Supreme Court.

3. Statement in brief that answer objected to was injected for sole purpose of creating prejudice against defendant in minds of jury, so that he was irrevocably harmed by the fact that the answer was allowed to stand, and that answer should have been stricken out, though no motion to strike was made, held inadequate briefing.

ACTION OF TORT for conversion. Plea, the general issue. Trial by jury in Rutland municipal court, Wm. H. Botsford, Municipal Judge, presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

Crowley & Smith for the defendant.

Lawrence Stafford & O'Brien for the plaintiff.

Present POWERS, C. J., SLACK, MOULTON, THOMPSON and SHERBURNE, JJ.

OPINION

SHERBURNE

Each of the parties pastured a number of cows in a third person's pasture. When the plaintiff sent his sons to get one of his cows they could not find it in the pasture, and he was informed that the defendant had taken it. Shortly thereafter he recognized this cow in defendant's yard with defendant's cows. Upon defendant's refusal to let the plaintiff take the cow this suit was brought. Verdict and judgment were for the plaintiff and the case comes here upon exceptions saved by the defendant.

In the direct examination of the plaintiff he was asked if the defendant made any threats when he went for the cow and he replied "Yes." He was then asked what was said by the defendant and he replied: "Mr. Smith told me that he shot a man for less than what I told him." Whereupon defendant's attorney objected and said: "That is for the purpose of prejudice." The court then asked the purpose of the offer and, after being informed that it was evidence of malicious intent upon the question of punitive damages, said: "The answer is received subject to your exception."

This shows no question saved for review. No objection was made or exception taken to the question until after it had been answered. Since the answer was responsive, and it did not appear that an objection could not have been seasonably interposed, the exception was too late to be availing. State v. Ward, 61 Vt. 153, 185, 17 A. 483; State v. Fitzgerald, 72 Vt. 142, 144, 47 A 403; State v. Powers, 72 Vt. 168, 171, 47 A. 830; State v. Gile, 93 Vt. 142, 144, 106 A. 829; State v. Conley, 107 Vt. 72, 75 176 A. 300. But assuming from what followed that the court treated the objection as timely, the question is so...