70 Vt. 418 | Vt. | 1898
(1) Tbe questions in this case are those of evidence. V. S. 4836, 4837, provide tbat when sbeep are killed by dogs, 'the selectmen shall proceed and determine tbat tbe killing of tbe sheep is tbe work of dogs, and have the damages ascertained and appraised. The deposition of one Boyd, who was a selectman of tbe plaintiff town at tbe time when the sbeep were killed, was offered in evidence, and
(2) Boyd’s testimony tended to show that he had conversation with the defendants concerning their dogs, in •connection with the killing of the sheep in question, and that one of the defendants, the other being present, said, “they thought there were other dogs in the scrape.” This part of fihe deposition was excluded. It tended to show an admission by the defendants that their dogs were engaged in the killing, the fact in issue. It was error to exclude it.
(3) Exceptions were taken to the admission of the testimony of Sherman, Perry, and Winchester, which tended to show the dogs were not vicious and when in the vicinity of sheep, and when among them, did not attack them. This was proper testimony, whether it related to a time prior to the killing or subsequent thereto. The only way of showing the fixed character and habits of a dog, is to show his conduct on particular occasions. Evidence of the good or bad behavior of a dog would tend to show a good or vicious disposition, and a fixed habit—Kennon v. Gilmer, 131 U. S. 22—and was admissible whether the dog was with his master or away from him. There was no error in not submitting the question of the distance of the dogs from their owners, as the testimony was admissible whether they were in the presence of their owners or not.
(4) The testimony of Houghton was excepted to, for that
(5) The sheep in controversy were killed during the first days of September, 1896, in the Starkey, sometimes called the Warner pasture, and the testimony of the plaintiff tended to show they were bitten in the neck and hindquarters. Under exception, the defendants were permitted to show that, on the fifth day of that month, one sheep was killed in the Simonds pasture, and three killed and two wounded in a pasture adjoining thereto, mostly bitten in the flank and neck; these pastures were a mile from the Starkey pasture, and, under like exception the defendants were permitted to show that in November, 1896, one sheep was killed in the Simonds pasture, bitten on its flank. The purpose for which this testimony was offered was not stated by the counsel, and the purpose for which it was admitted was not stated by the court. No specific objection was made to it. If it was admissible for any purpose the action of the court was not erroneous. Camp v. Camp, 59 Vt. 667.
A fact or circumstance to be admissible in evidence must be one upon which a reasonable presumption or inference can be founded as to the truth of the issue or fact in dispute. The fact in dispute in the case below was, did the defendants’ dogs kill the sheep in the Starkey pasture. If there could have been any evidence in the cause which would make the testimony admissible we must presume it was given. Tenney v. Smith, 63 Vt. 520, and cases cited. That the defendants’ dogs killed the sheep in the Simonds pasture had no tendency
(6) The remaining exception refers to the testimony of Judge Walker. The defendants’ testimony tended to show that, the winter and summer before the sheep were killed, their dogs went among their sheep and did not offer to molest them. This was evidence introduced by the defendants when they were putting in their case. The plaintiff offered Judge Walker as a witness to show that sheep-killing dogs are not accustomed to attack the sheep of their owners, but that they go away to do it. It is urged by the defendants that this testimony was not excluded by the court but upon the court’s suggestion that they might omit it, the plaintiff's counsel withdrew the question. Had this been so, there would have been no error in the omission of Judge Walker’s testimony, but the record reads that “the plaintiff also excepted to the ruling of the court, excluding the inquiry put in rebuttal to Judge Walker.” The record controls, and that shows the inquiry was not permitted but was excluded by the court. We think it was proper testimony to meet that of the defendants, which tended to show their dogs went among their sheep and did not molest them. If it was a fact that sheep-killing dogs did not attack the sheep of their master, it was proper for the plaintiff to prove it, and as they were prevented from so doing by the ruling of the court, there was error.
Judgment reversed and catise remanded.