Proctor v. Irvin

HUNT, J. Plaintiff, respondent here, sued defendants, who are appellants, to recover possession of 186 head of cattle belonging to plaintiff, alleged to have been wrongfully and unlawfully taken by defendants from plaintiff’s possession, and for damages for the detention of said cattle. Defendants, by an amended answer, on information and belief denied plaintiff’s ownership; positively denied a wrongful or unlawful taking, or a wrongful or unlawful withholding, and any damages by reason of such taking and detention. Trial by jury. Verdict and and judgment for plaintiff, awarding him a return of the property, and $200 damages. Defendants’ motion for a new trial denied. Appeal from judgment and order denying a new trial. The denial of a wrongful or unlawful taking or a wrongful or unlawful withholding is pregnant with admissions that defendant did take and did withhold the cattle. (Harris v. Shontz, 1 Mont 212; Toombs v. Hornbuckle, id. 286.) These admissions narrowed the issues for trial, and justified the rulings of the court holding that, as the case developed, the real and only issue was what damages plaintiff suffered by the acts of the defendants in the taking and withholding. [550] Plaintiff’s evidence was that he owned the cattle; that up to April 23d the cattle were in very fair condition; that on April 23d defendants, without his consent, drove them to a point five miles away, called the “Arm of the Lake;” that on April 25th he demanded the cattle, but defendants refused to deliver them up; that on April 27th he found the cattle about twenty-five miles further away, being held by defendants at Sullivan’s Flacs; that the sheriff took possession of them at his instance on May 5th, and while they were in defendants’ possession at Sullivan’s Flats; that he was damaged by the driving and close herding of the cattle, and by loss of calves and the increase of the cattle; that the effect of the forced drives and close herding was to subject the cows to loss of calves and general impoverishment; that the cattle were driven over twenty miles in one afternoon after they were taken from his possession, though ten miles was plenty far enough to drive a mixed band in April; that the cattle suffered from rough handling; that when he took them they were very weak, lying around in alkali spots, too weak to stand up; that, when the cattle were turned back, 11 calves were included; that an ordinary increase for 1897 would have been 20 per cent., and that he ascribed the falling off principally to the rough handling the cattle had had in the spring; and that he had never recovered one cow and one calf. Defendant Irvin admitted that he and others drove the cattle to the Arm of the Lake, but said it took them half a day to make that drive, and that he did not move them from there. A witness for defendant, named McGregor, said he saw the cattle at Sullivan’s Flats, which was a distance of about eighteen miles beyond the Arm of the Lake, but that he could not say the cattle were “badly injured at all.” This same witness, on cross-examination, said some of the cattle were in poor condition, some in fair condition, but that he ‘ ‘could not tell whether Mr. Proctor’s cattle were in fair condition or not,” as he did not observe his cattle. In the light of all this evidence, the court committed no error in overruling defendants’ objection to a question asked [551] of plaintiff as to what was the increase of plaintiff’s cattle for 1897, as compared with the increase of former years. Plaintiff had sworn to the drive the cattle had had, to the observed effects of that drive, to the condition of his cattle before and afterwards, and to what an average increase of cattle was in 1897, where there were no such conditions as those which surrounded his herd that year. We think the foundation was sufficiently laid to warrant the question. It was equally proper to permit plaintiff to testify as to his belief as to the cause of the decrease in the number of calves. Having sworn that he had been in the cattle business many years he was fully qualified to testify in this respect. ' The point that the question assumed a state of facts not justified by plaintiff’s testimony is entirely untenable. We must also sustain the court in excluding questions asked by defendants for the purpose of ascertaining who had possession of the cattle when the sheriff took them, on May 5th. Inasmuch as their pleadings admitted the taking on April 23d, and the detention until the sheriff took them under the direction of the plaintiff, the matter became immaterial. The interrogatories put to several witnesses touching the condition of the cattle when taken by the officer were properly admitted. It having been testified to that they were in good condition before defendants drove them away, and it having been admitted that defendants took them and detained them until they were taken by the sheriff, it was clearly proper to show what their condition was when they were so taken from defendants’ possession. Defendants objected to certain questions relating to effects of driving and close herding cattle, put to an experienced cattle grower, who was called as an expert witness. As the several questions were based upon the plaintiff’s evidence, no error was committed in allowing them. Questions were propounded to defendant Irvin for the purpose of getting at the fact and nature of his possession and control of the cattle between the 23d of April and 5th of May. These matters became immaterial, under the pleadings, for reasons heretofore stated. [552] Defendants’ counsel asked Irvin if he knew “what the effect was upon these cattle, as driven from below Mr. Proctor’s to the Arm of the Lake. ’ ’ Plaintiff objected - on -the ground that the question called for the conclusion of the witness, and the. -court sustained the objection. Defendants excepted. This ruling is assigned as error; defendants contending that the ■question was competent to show that the cattle were not injured by the defendants on account of the drive from Proctor’s to the Arm of the Lake, and that the testimony was admissible to show mitigation of damages. Let us assume the question •called for an answer based upon a fact that is a matter of ■common observation, rather than for a conclusion from facts, .and let us also assume that the witness would have answered that he knew what the effect of the drive was,' and that.it was not harmful to the cattle; nevertheless we inquire how the defendants were prejudiced by the rulings of the court. The answer is, “They were not.” Defendants having admitted the taking and detention of the cattle until May 5th, could not relieve themselves of liability, or mitigate the damages done by the taking and detention, by proving that at the end of the first five miles of the twenty-five that the cattle were driven they were not injured. It was of little importance to fix the-exact time or place where" the cattle were injured, so long as it was established, upon the whole case of plaintiff, that the •damage to the band was done by the unlawful taking and detention of the defendants between April 23d and May 5th. For this reason we discover no error which prejudiced defendants. But, furthermore, the question was of no significance, inasmuch as plaintiff did not say that his cattle were in appreciably bad condition when he saw them at the Arm of the Lake, five miles from the point they were taken, but relied upon his proof of their condition as discovered after the drive-from the Arm of the Lake to Sullivan’s Flats, which was evidently the twenty-mile drive given the cattle in one afternoon, ¡and which enervated them to the extent testified to. This ber ing so, the material issue was not whether the cattle suffered by the first part of the drive, which appears to have been [553] harmless, but by that part of it extending over the distance between the Arm of the Lake and the point where plaintiff found them exhausted and weakened. It follows, therefore, that upon no theory was the exclusion of the evidence sought to be adduced injurious to defendants. Defendants argue that there was no evidence showing that plaintiff was damaged in the sum of §200, or any greater sum than §30, the aggregate value of the one cow and calf never delivered. But, if the jury believed plaintiff’s testimony, his cows were seriously injured, and his loss of calves was undoubtedly attributable to the acts of the defendants in taking, herding, driving and detaining his cattle. It is not for this Court to disturb the verdict. Minor errors assigned are not well founded. Let the judgment and order be affirmed. Affirmed. Brantly, C. J., and Pigott, J., concur.