Rosum v. Hodges
| Decision Date | 24 November 1890 |
| Parties | ROSUM, Plaintiff/Respondent, v. HODGES et al. Defendant/Appellant. |
| Court | South Dakota Supreme Court |
Appeal from District Court, Minnehaha County, SD
Affirmed
Bailey, Davis and Lyon, Sioux Falls, SD
Attorneys for appellants.
H. Robinson
Winsor & Kittredge, Sioux Falls, SD
Attorneys for respondent.
Argued Apr. 5, 1890. Opinion filed Nov. 24, 1890.
Respondent was the owner of certain flax-seed in his granary, on his farm in Minnehaha county. During his absence from home, and without his knowledge or consent, Gerde, his hired man, hauled to appellants’ elevator, and sold and delivered to appellants, a quantity of such flax, receiving the pay therefor. Appellants bought innocently, supposing Gerde had a right so to sell. Immediately after the sale, Gerde absconded with the proceeds, with the exception of a small amount, noticed hereafter. The action was brought against appellants for the conversion of the flax. Respondent had judgment, and appellants appeal.
The first and second assignments of error are entirely ignored in appellants’ brief and argument, and, as error in respect to either is not apparent to the court, they are passed without discussion.
The third error alleged is the exclusion of the testimony of witness Haugen in answer to the question, “Did you have any talk with Mr. Rosum in regard to ten dollars of this money that Mr. Johnson paid you, if he paid any?” This question was propounded to the witness Haugen upon his cross-examination, to which respondent objected. Apparently in response to such objection, and without waiting for any ruling of the court thereon, appellants’ counsel made the following offer:
“We offer to show that Mr. Johnson, the witness last on the stand, borrowed of Gerde ten dollars of the money that was received from the grain in question in this suit; that he saw Mr. Rosum after Gerde had gone away, and told him of the transaction with Gerde, and offered to pay it to Mr. Rosum, and Mr. Rosum told him that he might keep it to apply on the wages that he owed him for services; that Mr. Rosum knew at the time that the money came from the grain in question; and that he said he would not take it himself, for fear it might have some effect upon his claim upon the defendants, but he would allow him to keep it to apply on his wages,”
—to which respondent’s counsel also objected, among other grounds stated, that it was not proper cross-examination. This objection was sustained by the court, as we think it should have been. The direct testimony of this witness was only that he, in company with Gerde, hauled twelve sacks of the flax in controversy from Rosum’s place to appellants’ elevator. It had no other force or bearing than to show the single fact that so much of respondent’s flax had been taken from his granary to appellants’ elevator, and the manner of its transfer. The question presented to the witness, as well as the matter proposed to be proved by him, were entirely outside of and distinct from his direct examination. Cross-examination, both in the learning of the books and the practice of the courts, is confined within the limits of the examination in chief, or, as tersely stated by the court, in Railroad Co. v. Stimpson, 14 Pet. 460: “A party has no right to cross-examine any witness except as to facts and circumstances connected with the matters stated in his direct examination.” Of course the trial court may, under justifying circumstances, in its discretion, allow the range of cross-examination to be extended beyond the strict rule, but such a case is not presented here. In this case appellants offered evidence obnoxious to the rule; the court excluded it; and such ruling constitutes the alleged error. The assignment cannot be sustained.
The next error assigned is that the court erred in instructing the jury on the question of damages as follows:
Under our statute (Section 4003, Comp. Laws) “the detriment caused by the wrongful conversion of personal property is presumed to be (1) the value of the property at the time of the conversion, with the interest from that time; or, (2) where the action has been prosecuted with reasonable diligence, the highest market value of the property at any time between the conversion and the verdict, without interest, at the option of the injured party,” etc. Under this statute the respondent was entitled, if the action had been prosecuted with reasonable diligence, to make his election between the first and the second measure of damages, but the statute is silent as to when and how such election shall be manifested. In Rickert v. Rugg, (ND) it was held that, to entitle a party to the highest market value between the time of the conversion and the rendering of the verdict, it must affirmatively appear that the action was commenced and prosecuted with reasonable diligence, and that a delay of eleven months in bringing action was fatal to the claim of such reasonable diligence. In this case, however, the alleged conversion occurred on the 22d day of November, 1888, during respondent’s absence from the state, which absence continued until December 16th or 17th. The action was commenced on the 26th day of February, 1889, and tried at the ensuing April term. This, we think, was reasonable diligence.
The next inquiry is as to respondent’s right to exercise his election as to the rule of damages upon the trial. Appellants claim that respondent had already made his election, and declared the same in and by his complaint, which demanded judgment for “the sum of two hundred and sixty-six and eighty-five hundredths dollars, with interest from the 26th day of November, 1888;” that as, by the terms of the statute, the first measure of damages should include interest, and the second should not, the demand of interest was a plain election of the first measure. Upon this question we express no opinion; but, conceding this view to be correct, it was clearly competent for the parties, upon the trial, by mutual consent, to adopt the other measure. Upon the trial the only evidence upon the question of damages was that going directly and exclusively to the highest market value of the flax intermediate the conversion and the trial, and, except upon the theory that respondent was then and there entitled to recover such damages, such evidence was clearly inadmissible, but neither objection nor suggestion of its inadmissibility was made. The appellants, by failing to object in any manner to such testimony, either by preliminary objection or subsequent motion to strike out, plainly consented that it was admissible and proper. By admitting the same unchallenged, appellants gave ...
To continue reading
Request your trial