Town of Dover v. Winchester

• Decision Date: 26 March 1898
• Citation: 70 Vt. 418,41 A. 445
• Parties: TOWN OF DOVER v. WINCHESTER et al.
• Court: Vermont Supreme Court

41 A. 445

70 Vt. 418

TOWN OF DOVER

v. WINCHESTER et al.

Supreme Court of Vermont. Windham.

March 26, 1898.

Exceptions from Windham county court.

Action to recover damages paid by the plaintiff, the town of Dover, to owners of sheep killed by dogs, against defendants, H. H. Winchester and another, as owners of the dogs. Trial by jury. Verdict and judgment for the defendants. The plaintiff excepts. Reversed.

The testimony of Houghton, referred to under division 4 of the opinion, was that the witness had discovered two dogs, not the defendants', chasing and maiming his sheep, and killed them, with the consent of the owners.

S. T. Davenport and Clarke C. Fltts, for plaintiff.

Waterman, Martin & Hitt, for defendants.

TAFT, J. 1. The questions in this case are those of evidence. The Vermont Statutes (sections 4836 and 4837) provide that, when sheep are killed by dogs, the selectmen shall proceed and determine that the killing of the sheep is the work of dogs, and have the damages ascertained and appraised. The deposition of one Boyd, who was a selectman of the plaintiff town at the time when the sheep were killed, was offered in evidence, and the statement therein, "I was satisfied it was the work of dogs," was excluded. It was the duty of the selectmen to determine that the sheep killing was the work of dogs, before they proceeded to appraise the damages,—and the testimony excluded was legitimate upon that question; but, if its exclusion was error at the time it was offered, the error was cured by the subsequent concession of the defendants that the ascertainment and payment of damages were regular. Therefore the testimony of the deponent that he was satisfied it was the work of dogs was unnecessary. The fact which the testimony tended to prove was conceded, and the plaintiff was not harmed by its exclusion. Reyn. Ev. § 57.

2. Boyd's testimony tended to show that he had conversation with the defendants concerning their dogs in connection with the killing of the sheep in question, and that one of the defendants (the other being present) said "they thought there were other dogs in the scrape." This part of the deposition was excluded. it tended to show an admission by the defendants that their dogs were engaged in the killing,—the fact in issue. It was error to exclude it.

3. Exceptions were taken to the admission of the testimony of Sherman, Perry, and Winchester, which tended to show the dogs were not vicious, and when in the vicinity of sheep, and when among them, did not attack them. This was proper testimony, whether it related to a time prior to the killing or subsequent thereto. The only way of showing the fixed character and habits of a dog is to show his conduct on particular occasions. Evidence of the good or bad behavior of a dog would tend to show a good or vicious disposition and a fixed habit (Kennon v. Gilmer, 131 H. S. 22, 9 Sup. Ct. 696), and was admissible, whether the dog was with his master or away from him. There was no error in not submitting the question of the distance of the dogs from their owners, as the testimony was admissible, whether they were in the presence of their owners or not.

4. The testimony of Houghton was excepted to, for that the facts to which he testified were too remote in location and time. The circumstances to which the testimony related took place at the distance of about a mile from, and a month after, the killing of the sheep which are the subject of this controversy. This exception will not avail the plaintiff, for in such eases the length of time, and the distance, to which such evidence may extend, is largely within the discretion of the trial judge. It is a preliminary question, which will not, under ordinary circumstances, be considered by this court. Whether the testimony was relevant, we do not consider.

5. The sheep in controversy were killed, during the first days of September. 1896, in the Starkey, sometimes called the Warner, pasture; and the testimony of the plaintiff tended to show they were bitten in the neck and hindquarters. Under exception, the defendants were permitted to show that, on the 5th day of that month, one sheep was killed in the Simonds pasture, and three killed and two wounded in a pasture adjoining thereto, mostly bitten in the flank and neck. These pastures were a mile from the Starkey pasture. And, under like exception, the defendants were permitted to show that in November, 1896, one sheep was killed in the Simonds pasture, bitten on its flank. The purpose for which this testimony was offered was not stated by the counsel, and the purpose for which it was admitted was not...