Bates v. Cilley

47 Vt. 1 | Vt. | 1874

The opinion of the court was delivered by

Royce, J.

The testimony offered by the defendant as to the plaintiff’s setting his dog to fighting with the defendant’s dog a short time before it was claimed that the defendant’s dog bit the female plaintiff, was properly excluded. There was no such connection between the fact offered to be proved and the injury complained of, as made the evidence admissible for any purpose.

The only ground upon which it was claimed that the defendant’s wife was a competent witness was, that she was the agent of her husband. The relation of principal and agent takes place wherever one person authorizes another to do acts or make engagements in his name. Paley on Principal and Agent, 1. The defendant did not claim that his wife had any special charge, or any other charge or agency than any married woman living and keeping house with her husband would have in case of the temporary absence of her husband from home for a day. This, in our judgment, comes far short of establishing the legal relationship of principal and agent between the husband and wife, so as to clothe her with authority to bind him by her- acts during any such temporary absence from home, and to give him the benefit of her testimony, in case he may find it for his advantage to denominate her his agent. The cases of White v. Langdon, 30 Vt. 599, Upham & Clay v. Wheelock, 36 Vt. 27, and Goodrich v. Tracy, 43 Vt. 314, are good authority against the admissibility of this evidence.

To entitle a party to the reversal of a judgment upon the ground that the court refused'to charge as requested, it should appear that the party was entitled, as a matter of legal right, to the charge requested. It is sufficient to say that it does not appear in this case that the plaintiffs were not entitled to exemplary damages. From what does appear, we are inclined to the opinion that the charge upon this subject was quite as favorable to the defendant as it should have been. The jury probably regarded what was said by the court as intended to limit the plaintiffs’ right of recovery to actual damages. The motion in arrest was properly overruled. No question can be made but that the court could properly have permitted the amendment by striking out the words in the declaration which were stricken out, if leave had been asked before trial; and where the court can allow an amendment, they do it in the exercise of a discretionary power, and their action is not revisable. The motion to amend was made after hearing and before judgment. The exceptions state that the trial proceeded for the recovery of the damages to the wife plaintiff only, and for such damages as she was entitled to recover, and not for any damage to the husband plaintiff; and the jury were instructed accordingly, to which no exceptions were taken. The declaration, when amended, stated the cause of action, and the only cause of action upon which the trial was had, and which the jury, under the instructions of the court, could have considered. The only purpose to be accomplished by it was, to avoid a technical objection which might have been made under a general verdict. The application was seasonably made. Kimball v. Ladd, 42 Vt. 747. And the power to grant it was clearly conferred by § 41, ch. 80, of the Gen. Sts.

We have carefully criticised that portion of the charge to which exception was taken, and have failed to discover in it anything to justify the severe animadversions of counsel; but on the contrary, we regard it as being an able and just presentation of the rules by which jurors should be governed in weighing and reconciling testimony, as laid down by the best writers upon the law of evidence, and as recognized by the highest judicial authority.

The judgment is affirmed.