Winchell v. National Exp. Co.
| Decision Date | 15 February 1892 |
| Citation | 23 A. 728,64 Vt. 15 |
| Parties | JENKS L. WINCHELL v. NATIONAL EXPRESS CO |
| Court | Vermont Supreme Court |
GENERAL TERM, OCTOBER, 1891
Case for injuries done the plaintiff's dog. Plea, the general issue. Trial by jury at the September term, 1890, Rutland County, Taft, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts.
Judgment reversed and cause remanded.
J C. Baker and Geo. E. Lawrence, for the defendant.
1. The objections interposed by the defendant, to the testimony of the plaintiff, and of Coffin are unavailing unless exceptions were saved to the ruling of the court. The three questions and answers of these witnesses, to which exceptions were saved, were on subjects material to the proper estimation and determination of the value of the plaintiff's dog. The first related to the breeding and characteristics of her dam the second to the elements constituting her value, and the third, to whether her sire and dam were valuable. They called for facts within the knowledge of these witnesses, which bore upon the value of the dog, which the plaintiff claimed was injured by the neglect of the defendant. There was no error in their admission. 1 Greenl. on Ev. (12th Ed.) ss. 440 440a; 2 Best on Ev. (Wood's Ed.) s. 513. The breeding and pedigree of a dog used for breeding are elements to be considered in determining its value, as well as its personal characteristics.
2. The plaintiff sought to hold the defendant for an injury received while transporting the dog from the plaintiff's house, in Fair Haven, to the defendant's office, where it received and delivered matter carried by it, as an express company partly on the ground that it had knowingly held out its agent, F. O. Vaughan, as having apparent authority,--whether he had such authority in fact or not,--to receive express matter at the plaintiff's residence, and at the residence of its other patrons in the village. It sought to establish this apparent authority in part by the use of the wagon,--in which the dog was being transported when injured,--in the business in collecting and delivering express packages,--which wagon had the name of the defendant printed upon its sides,--and by the use of call-cards, in connection with such use of the wagon. The plaintiff claimed that such use being known to him, authorized him to believe that when he delivered this dog into this wagon, it was a delivery to the defendant, no matter whether in fact the defendant had given Vaughan authority to receive express packages for it at the residences of the patrons in the village. As bearing upon this issue, raised by the plaintiff, it was material for the defendant not only to show it did not own the wagon, and did not authorize its use in collecting or delivering express packages, but also to show that the whole use of the wagon and team, known to the plaintiff, was such that the plaintiff in the exercise of reasonable prudence was not authorized in believing that the receipt of the dog by Vaughan or his servant, into this wagon, was a receipt by the defendant. The three questions asked to Vaughan, and excluded by the court, as well as the question put to Morehouse and excluded, called for information in regard to the use of the wagon by Vaughan, in other than express business. The first two questions to Vaughan and the one to Morehouse called for a statement of the use of the wagon, inconsistent with the defendant's entire control of it. The plaintiff could be affected by such use, only so far as it was either actually known to him, or was so public and open in his immediate vicinity that he would be presumed to have known of it. The defendant did not offer in connection with these questions to bring such use to the knowledge of the plaintiff. Hence these questions were properly excluded. The third question to Vaughan called for the use of the wagon, not in the express business, in the service of the plaintiff, and known to him. The exclusion of this question by the court on the ground that it was immaterial was a holding that no inquiry on...
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