20 Mont. 84 | Mont. | 1897
-It appears from the record that the only substantial conflict in the evidence on the trial was as to the value of the horses. The evidence on this subject was as follows : A witness for defendant, one Catlin, admitted that the value of the horses was $125. The amount realized on the execution sale of them by the constable was $180. A witness for plaintiff, one Wilber, testified that, in his opinion, the horses were worth $250 ac the date the constable seized them, on February 25, 1895.
The respondent contends that the only evidence to sustain the jury in finding these horses worth $250 is that of Wilber, and that one of the reasons of the court for granting a new trial was that said Wilber was not a witness qualified or competent to testify that these horses were worth $250. A portion of the testimony of said Wilber is as follows : “I reside at Great Falls, and my business is transfer business, in which I have been engaged for a little over seven years. I think I
There was no objection to the testimony of Wilber, but, even if there had been, it should have been overruled. It is true that he apparently contradicts himself in what he says as to his knowledge of the market value of horses in Great Falls in the month of February. It was within the province of the jury, however, to determine whether this contradiction detracted from the weight of his testimony.
From the record it is apparent that both the lower court and the attorney who tried the case for defendant misunderstood the rule of law applicable to the proof of the market value of these horses. This appears in several places.
The examination of one McGovern, who knew the horses (a witness for plaintiff), was as follows :
‘ ‘My business in the past six or seven years has been general team work, freighting and all kinds of team work. In my freighting I have been handling heavy horses, from twelve to sixteen hundred. I have been using those horses, freighting in the vicinity of Great Falls and Fort Benton, all through this country here. I have been engaged in that kind of work since 1887. That time has been put in in Montana, in and about Great Falls. ’ ’
. “Q. ‘State what, in your opinion, this team was worth at that time. ’ (Defendant objects to the question, because the witness has not been shown competent to know the market value of horses in the vicinity of Great Falls at that time. Objection sustained.)
“Q. ‘You may state whether or. not you are acquainted with the value of such a team as the team in question on February last.5 (Defendant objects to the question, upon the ground that it is immaterial and irrelevant. The market value is the true criterion. Objection sustained.)
The rulings of the court as to McGovern’s testimony, and as to the testimony of other witnesses introduced by the plaintiff for the purpose of proving "value, were clearly erroneous. It was impossible to determine the exact market value of these horses in the month of February. They had not been sold. All the law required of the plaintiff was to show what they would reasonably have brought had they been sold. The rule as to what qualifies or renders a witness competent to testify as to the market value of an animal so common as the horse is not the same as one governing witnesses who are to give evidence as to some scientific subject with which experts alone are conversant. There are few persons of common understanding in any part of this state who do not possess some general knowledge both as to the character and value of horses in their respective localities. The subject is one made generally familiar through the experience, personal or observed, of everyday life. Therefore it requires very little to qualify and render a witness competent to testify on the subject of the value of horses in the locality in which he resides. The witness McGovern, possessing, as he did, a long personal experience with horses in and about Great Falls, was fully qualified to express his opinion to the jury as to what this team was worth in the month of February; and whether he could recall any particular sales of horses in said month or not made no difference. It was proper for the jury to consider his opinion in determining the market value of these horses.
It would seem from these rulings that the lower court entertained the view that the only manner in which plaintiff could have established the market value of these horses was through witnesses who were both expert horsemen and familiar with the transactions in horses in Great Falls during the month of February. Such a view of the law is unsound. There was
The question put upon cross-examination, as to whether the plaintiff, Holland, authorized Olson to tell it around the country that these horses belonged to him, was properly excluded. No evidence had been introduced by defendant to show that Olson was the owner of the horses. The answer pleads no estoppel as to Holland. It was not suggested that Holland, by allowing Olson to have the custody of these horses, had misled any one into giving the latter credit. The court stated that it would not permit the question at that stage of the trial, and defendant made no effort to lay .a foundation for the introduction of any such testimony.
It is assigned as error that the court refused to strike out the testimony of a witness as to a conversation he had had with Catlin.
The court instructed the jury that the conversation should not be considered as affecting defendant. The error in the admission of it, if any, was cured by the instruction.
The instructions objected to stated the law correctly. The instruction referred to in assignment of error numbered i does not comment upon the evidence; it simply mentions it.
Was the showing of newly-discovered evidence sufficient to justify the court in granting a new trial ? We think not. It is stated by Catlin in his affidavit that he had learned that one George Pannick would testify to certain things. For all that appears, his knowledge of what' Pannick would testify to was obtained through hearsay sources only. Moreover, there is a flat contradiction in his statement that he had learned since the trial that Pannick would testify to certain facts, and the subsequent statement contained in his affidavit that he had
Handley, who, Gatlin and Clark swear, told of having had a conversation with the plaintiff, Holland, swears positively that he did not make any such- statement to Gatlin; and we fail to see, under this condition of affairs, wherein the defendant would have been benefitted by having. Handley called as a witness on another trial.
An appellate court does not, as a rule, interfere with the discretion possessed by a trial court in granting or refusing a new trial; but, when it appears that such discretion has been exercised without any sufficient or substantial reason, it must be controlled.
The cause is remanded, with directions to the lower court to set aside its order granting a new trial.
Remanded.