Budd v. Northern Pacific Ry. Co.

195 P. 1109 | Mont. | 1921

MR. JUSTICE REYNOLDS

delivered the opinion of the court.

This action was brought for recovery of damages caused by the alleged wrongful killing of a Holstein heifer. Judgment was rendered in favor of plaintiffs. Appeal was taken from the judgment, and from order overruling motion for a new trial.

The only questions presented upon these appeals are those [1] involving the admissibility of evidence. It appears that the heifer, at the time it was killed, was fourteen months of age, and that plaintiffs purchased the animal when it was'four months old. Testimony was given showing that the animal was high-grade, registered stock, and that its principal value lay in its breeding. Upon cross-examination one of the plaintiffs was asked the price that he paid-for the heifer. A similar question was asked of witness Frank Streff, who sold it to plaintiffs. Objections to these questions were sustained on the ground that the sale price was immaterial, because too remote to be of any evidentiary value. Defendant contends that the court erred in sustaining these objections. In cases of ordinary livestock, not registered and not of any particular value because of breeding, such objections could be made with more force than in the present instance. While ordinarily, in case of “mongrel” stock, the sale price at four months of age would not have any substantial bearing upon the value of the same animal ten months later; yet when the value is principally in the breeding, which condition is constant during the entire life of the animal, then such sale price would reflect materially upon its value at any time, unless it may be at the time when its individuality may overwhelmingly predominate over the element of breeding. In our opinion, such evidence would be material, and should have been admitted. While the court has a discretion in these matters, it seems to us that there was an abuse of discretion in sustaining these objections.

The admissibility of the evidence is especially apparent when question as to sale price is asked upon cross-examination. It is the policy of the courts to permit a broad cross-examination touching all matters that may be connected with the examination in chief. It is stated in State v. Biggs, 45 Mont. 400, 123 Pac. 410: “The right of cross-examination is a substantial one, and may not be unduly restricted. It may extend, not only to facts stated by the witness in his original examination, but to all other facts connected with them which tend to enlighten the jury upon the question in controversy.” While sale price of the animal. in question at four months of age would not be an absolute criterion as to its value ten months later, yet it would tend to enlighten the jury upon such value, particularly the value of its breeding, in which, as has been pointed out, was its principal value.

Plaintiffs suggest that perhaps this calf was purchased under a lump sum, with other stock, and therefore the sale price was immaterial. The record, however, fails to show that such was the fact, and this court can act only on the record as it is presented.

Plaintiffs also contend that there was no error in excluding [2] this_ evidence because no offer of proof was made. Offer of proof is not necessary on cross-examination. (Herzig v. Sandberg, 54 Mont. 538, 172 Pac. 132.)

Other questions were asked upon cross-examination, involving [3] the expense of keeping the animal for the ten months period between the time it was four months old and the time it was fourteen months old, and also regarding sales of Holstein stock not registered, to which questions objections were sustained. We think the court was1 correct in its rulings upon these questions, as they do not in any way bear upon the market value.

For the reasons hereinbefore given, the judgment and order are reversed and the cause remanded for further proceedings.

Reversed and remanded.

Mr. Chief Justice Brantly and Associate Justices Cooper, Holloway and Galen concur.