Surbaugh v. Butterfield

• Decision Date: 08 April 1914
• Docket Number: 2573
• Citation: 44 Utah 446,140 P. 757
• Court: Utah Supreme Court
• Parties: SURBAUGH et al., v. BUTTERFIELD

140 P. 757

44 Utah 446

SURBAUGH et al., v. BUTTERFIELD

No. 2573

Supreme Court of Utah

April 8, 1914

Rehearing Denied May 9, 1914.

APPEAL from District Court, Third District; Hon. M. L. Ritchie Judge.

Action by T. M. Surbaugh and another against Samuel Butterfield.

From a judgment for plaintiffs, defendant appeals.

REVERSED AND REMANDED FOR NEW TRIAL.

A. A Duncan for appellants.

C. W. Collins for respondent.

STRAUP, J. McCARTY, C. J., and FRICK, J., concur.

OPINION

STRAUP, J.

This is an action for trespass. It is alleged the defendant's sheep and cattle, between March, 1910, and July, 1911, trespassed on the plaintiffs' lands to their damage. The defendant, in his answer, admitted "that at the times mentioned" in the complaint "he was the owner, in possession, and chargeable with the care and control of certain animals, to-wit, sheep and cattle," and denied all the allegations of the complaint. The case was tried to the court. The issues were found, and a judgment rendered in plaintiffs' favor. The defendant appeals.

He asserts the evidence is insufficient to show that the trespassing sheep and cattle were his, and that the court erroneously admitted evidence to prove ownership. One of the plaintiffs testified that in March, 1910, he saw a herder with the trespassing sheep and cattle. He was asked by his counsel: "Did you see any herder in charge of the stock up there during 1910? A. Yes; with the sheep. We went up to the camp where he was. Q. Did you make any inquiry of him as to whose herder he was, and whose stock those were? A. Yes, sir. Q. What did he tell you?" This was objected to as hearsay. The objection was overruled. "A. He came to meet us. We said to him, 'Whose sheep are those?' He says, 'Butterfield's.'" The defendant also made a motion to strike the testimony. It also was denied. The witness further answered: "And the cattle was herding on the mountain also a little farther north. We said, 'Whose cattle are those?' He says, 'They are Butterfield's.'" This also was objected to, and a motion made to strike. Both were denied. "Q. In 1911 did you see any herder in charge of the stock there on the property? A. We met the herder of the sheep, and met him taking the sheep off the ground. Q. Did you have any conversation with him as to who he was herder for? A. Yes. Q. And who the cattle and sheep belonged to? A. Yes, sir; Surbaugh and I both talked to him. Q. What did he tell you?" This, also, was objected to on the same ground. "A. Didn't tell whose stock they were. He said Samuel Butterfield's sheep."

The other plaintiff was asked by his counsel: "Q. Did you see any herder in charge of the stock there? A. Yes, sir. Q. Did you go and talk with him about the stock? A. Yes, sir. Q. Did he tell you for whom he was herding, and who the stock belonged to?" This was objected to on the same ground. Same ruling. "A. He told me they were Mr. Butterfield's sheep; that he was working for him; he was his herder. Q. Who did he say the cattle belonged to?" Same objection and same ruling. "A. Said the cattle belonged to Mr. Butterfield also. Q. Did you find any herder in charge of the stock there in 1911? A. Yes, sir. Q. Did you go over to him and have any conversation with him as to whose stock they were, and who he was herding for? A. Yes, sir. Q. What did he say to you?" Same objection. Same ruling. "A. Said they were Mr. Butterfield's sheep; that he was Mr. Butterfield's herder. Q. What Mr. Butterfield? A. Samuel Butterfield."

Complaint is made of these rulings. If this evidence was improperly admitted, there is no sufficient evidence to show that the trespassing animals belonged to the defendant. He testified that they did not belong to him, and that they were not in his care nor under his control. The rulings are defended, first, on the ground that the evidence is harmless for, as is asserted, there was no issue as to the ownership of the trespassing animals. This, because of the defendant's admission in his answer that he was the owner, not of the alleged trespassing animals, but "of certain animals, to wit, sheep and cattle." That is not an admission that he was the owner of the alleged trespassing animals, when, in connection with the admission, all the allegations of the complaint are denied. In the next place, the case was tried on the theory that all of the material allegations of the complaint were put in issue, including the ownership and control of the alleged trespassing animals. The plaintiff attempted to prove ownership as though it was in issue. The rule is well settled that, when a case has been tried as though at issue upon all the material points, the plaintiff will not be permitted, for the first time in the appellate court, to assume the insufficiency of the answer, in the particular that material allegations regarded as denied and at issue were not denied. 21 Pl. & Pr. 667; Green v. L. S. & P. F. Co., 46 Cal. 408; Cave v. Crafts, 53 Cal. 135; Spiers v. Duane, 54 Cal. 176.

The rulings are further defended on the ground that the declarations of the so-called herder were admissible under the res gestae rule. How often this battle-scarred veteran of the exception to the hearsay rule is ordered to the front to arrest onslaughts of the old hearsay guard To justify this, language from texts to this effect are pointed to: Wood's Pr. Ev. section 155,

"Declarations of a party in possession of property made at the time of the transfer to him as to the nature of his possession"

are admissible. 16 Cyc. p. 1173,

"Claim as to ownership or rights by one in possession of personal property may be shown by relevant declarations, although they were not made under the declarant's oath."

Jones on Ev. (2d Ed.), Jones, Com's on Ev. 351,

"The declarations of persons in possession of personal property are often received as verbal acts characterizing and explaining the nature of such possession, that is, as a part of the res gestae."

About all the cases cited to support the texts are cited by the latter, Jones, Com's on Ev. Neither the texts nor the cases support counsel's contention. We think they are misconceived and misapplied. They relate to cases where the possession of the declarant or the nature or character of his possession, was relevant and material; cases involving declarations of former owners in possession of chattels, or of those in privity, or identified in interest with one claiming under or through the declarant, or declarations showing motive, design, intent, or purpose with which the declarant in possession acquired, held, or transferred the property, or declarations of authorized agents or other representatives. No claim is here made of agency, former owner,...