Miller v. Smith

112 Mass. 470 | Mass. | 1873

Gray, 0. J.

The only exceptions, which were insisted upon at the argument, were those taken to the admission of certain answers contained in the depositions introduced by the plaintiff, and to the questions permitted to be put on cross-examination to the defendant and to one of the witnesses called in his behalf.

1. Whenever the value of any peculiar kind of property, which may not be presumed to be within the actual knowledge of all jurors, is in issue, the testimony of witnesses acquainted with the value of similar property is admissible, although they have never seen the very article in question. Beecher v. Denniston, 13 Gray, 354. Fitchburg Railroad Co. v. Freeman, 12 Gray, 401. Brady v. Brady, 8 Allen, 101. Cornell v. Dean, 105 Mass. 435. Lawton v. Chase, 108 Mass. 238. A witness, having the requisite knowledge and experience, may always be examined by hypothetical questions, even if he has not seen the particular subiect to which the trial relates, and has not heard all the other evidence given in the case. Woodbury v Obear, 7 Gray, 467. Hunt v. Lowell Cas Light Co. 8 Allen, 169, 172.

In Brill v. Flagler, 23 Wend. 354, which was an action of trespass for killing a setter dog, one inquiry permitted to be made against objection was “as to the value of a good well broke setter dog;” and Chief Justice Nelson was of opinion that, in answer to such an inquiry, the testimony of witnesses acquainted with the peculiar qualities of setter dogs, and who had some knowledge of their value in the market, was admissible, (although they gave their opinions as to the value of setter dogs generally, and not as to the value of the plaintiff’s dog in particular,) upon the ground that “ they are supposed to be better acquainted with the general market value of such animals than the generality of mankind,” and that “ a common standard is thus fixed that may assist in arriving at the value in the particu lar instance, which will vary according to the quality, condition, &c., of the article in question.” His only doubt as to the admission of the testimony seems to have been whether the proof of the breed and qualities of the plaintiff’s dog was sufficient to authorize the general inquiry; and his opinion in favor of the competency of the testimony appears to have been approved by this court in Vandine v. Burpee, 13 Met. 288, 291.

In the present case, the questions whether cribbing was unsoundness, and, if it was, how far it affected the value of the mare in question, were questions of fact for the jury. Washburn v. Cudding, 8 Gray, 430. But it is not to be presumed that all jurors are necessarily acquainted with the effect of this habit upon the value of fast trotting horses. No objection was made to any of the witnesses on the ground of their want of knowledge or experience ; and we are of opinion that all the interrogatories objected to were competent. The third asked for the value of fast trotting horses of a certain age, size, gait, speed and other qualities. The fourth was whether the habit of cribbing or wind-sucking injured fast trotting horses for use or in market value, and how much. And the fifth was substantially a repetition of the fourth, as applied to a horse such as described in the third, and of the value which the plaintiff paid the defendant for the mare in question, and which the defendant testified at the trial was her fair value.

2. In cross-examination, with a view to test the truthfulness, judgment and credibility of a witness, great latitude of inquiry is usually allowed, and its extent and limits, where no rule of law is violated, are within the sound discretion of the judge presiding at the trial. Hathaway v. Crocker, 7 Met. 262, 266. Commonwealth v. Sacket, 22 Pick. 394. Winship v. Neale, 10 Gray, 382. Swan v. Middlesex, 101 Mass. 173. Johnston v. Jones, 1 Black 209, 226.

It does not appear to us that the judge exceeded his authority in this respect. The appearance and conduct of the defendant and of Ms witness may have been such as to satisfy the judge that the manner in which each of them met and answered, or hesitated or refused to answer the question, whether he would now give for the mare a tMrd of what he had testified she was worth, might assist the jury in judging what reliance they could place upon his testimony. The mere statement of the question and the testimony of the witness does not enable us to determine whether this was or was not so, or to sustain an exception either to the admission or to the rejection of such a question, put with a view of testing the credibility of the witness. The inquiry does not appear to have been permitted for any other purpose; the court instructed the jury that the answer of the defendant was not to be considered in estimating the amount of damages; and no further instruction was requested or exception taken by the defendant, either as to the effect of the testimony, or the argument made upon it by the plaintiff’s counsel.

.Exceptions overruled.