Where a case has gone to a hearing, testimony been submitted to
the jury under objection but without stating any reason for the
objection, and a verdict rendered, with judgment on the verdict,
the losing party cannot, in the appellate court, state for the
first time a reason for that objection which would make it
good.
In an action to recover damages for the taking of ore from a
mine by the proprietor of an adjoining mine, who had broken in, a
witness for defendant was asked whether he had a model of the mine,
but was not asked whether it was correct, and did not say that it
would illustrate the subject about which he was testifying.
Plaintiff objected to its production, and the objection was
sustained. In this Court, no copy of the model was produced.
Held that it was properly rejected.
The evidence of a person who did not personally know abort the
amount of ore taken from the mine was properly rejected at the
trial of such action, and cannot be held to be admissible under a
stipulation which does not form part of the record.
An exception to the refusal to give instructions in the language
of counsel is of no avail if the court substantially gives the same
instructions, although in different language.
The case is stated in the opinion.
MR. JUSTICE MILLER delivered the opinion of the Court.
This is a writ of error to the Circuit Court of the United
States for the District of Colorado. In that court, Graham and
Guggenheim sought to recover of Patrick and others the value of
certain mineral ores taken from the Minnie lode mining claim of the
plaintiffs, and converted to their own use, alleging that the
defendants were
Page 132 U. S. 628
guilty of a trespass, and that the quantity taken amounted to
500 tons of gold, silver, and lead bearing ore, of the value of
$60,035. To this the defendants answered, admitting that plaintiffs
were owners in fee of the Minnie lode Mining claim, but denying
that they were sole owners of said claim, and insisting that Samuel
Harsh was a co-owner and co-tenant with them. They deny the
trespass and conversion of the 500 tons, or any quantity, of the
ore, and deny that the ore was of the value of $60,035, or any
other sum.
A replication was filed by plaintiffs, denying the co-ownership
of Harsh, and the cause came on for hearing, and was submitted to a
jury, who found in favor of the plaintiffs, and assessed their
damages at the sum of $20,779. A motion was made to set aside this
verdict and grant a new trial, which was overruled, and a judgment
entered for the amount of the verdict in favor of plaintiffs. To
this judgment the present writ of error is prosecuted.
It seems to have been conceded at the trial that the defendants,
who owned the adjoining mineral claim, called the "Colonel Sellers
Lode," in pursuing that load, had broken into the vein of the
plaintiffs, known as the "Minnie Lode," which was the prior and
superior claim, and that they had taken therefrom a very
considerable quantity of valuable ore, which they had mixed with
the ore from their own lode, and converted to their own use by
selling it with theirs. The only question in contest before the
jury was the rule by which the damages of the plaintiffs should be
ascertained. As to that subject, the plaintiffs took one or two
exceptions to the ruling of the court in regard to the admission of
testimony.
The ground of the first assignment of error is that the court
admitted, against the objection of the defendants, certain
testimony of Meyer Guggenheim, one of the plaintiffs. In his
testimony, Guggenheim undertook to detail a conversation which he
had had with Patrick and Whiting, two of the defendants, before the
bringing of the suit, and with regard to the trespass. The question
was asked him:
"What was said between you upon the subject, commencing with the
first conversation you had, if you had more than one? State what
the conversation
Page 132 U. S. 629
was."
To this question, "the defendants, by counsel, then and there
objected on the grounds ___." But the court overruled the
objection, and permitted the witness to answer. In his answer, he
stated that Patrick admitted that they had mixed the ores from the
Minnie mine and from the Colonel Sellers mine, and he said that he
had written to the parties in control of the mine that they should
get off the ground.
The objection taken here to this testimony is that it was part
of a conversation had with a view to a compromise of the
controversy, and that it could not be used as evidence against the
party for that reason. The testimony itself, being evidence of the
conversion of the ore by the defendants, with a knowledge that it
was the property of plaintiffs, was pertinent as to the measure of
damages. It was therefore only to be excluded, if at all, on some
ground other than its want of relevancy to the issue.
The record before us does not show that the defendants, at the
time of the trial and at the time that the objection was made to
the introduction of this evidence, gave any reason at all why it
should be rejected, much less the reason which they now insist
on.
It cannot be permitted that, after the case has gone to a
hearing, testimony submitted to the jury, and a verdict rendered, a
party, for the first time, shall state a reason for his objection
to that evidence which would make the objection good. The record is
precisely as we have copied it, showing that, while defendants
"then and there objected on the grounds" the record is then silent.
No grounds were stated, so far as we know. For this reason, we
think, there is no error in the record on that subject.
If we were inclined to have any doubt upon this point, it would
be satisfied by the language of the court in its charge to the
jury, where it is said that
"it is in proof that, in going over into the plaintiffs'
territory, the defendants' foreman was in ignorance of the fact
that he was upon plaintiffs' ground, and the question is whether,
under the circumstances in evidence, this amounts to gross
negligence on the part of the defendants."
This charge of the court accords with the
Page 132 U. S. 630
statement in the bill of exceptions that, in reply to further
objection to the testimony relating to the effort to agree, the
court said that the "part which is not competent under the rule
will be stricken out." It is obvious that the jury were in effect
told to disregard any testimony showing that the trespass on the
part of defendants was intentional, and with knowledge of the
rights of plaintiffs.
The next assignment of error is that a witness called by the
defendants to testify as to the value and quantity of the ore taken
out of plaintiffs' mine, after stating that had had made
measurements of the stope from which the plaintiffs' ore had been
taken, by which measurement he calculated the amount of ore that
had been so taken, had introduced a plat of the mine, and of these
measurements. He was then asked the question:
"What proportion of the vein comprised in the Minnie and A. Y.
mines does this stope bear, according to your measurement? Have you
a model that would show that?"
"A. I have a model here."
"Q. Produce it."
To the production and exhibition of this model the plaintiffs
objected. The objection was sustained by the court, and to this an
exception was taken by the defendants. This exception is now urged
as sufficient to reverse the judgment. But we have no copy of the
model here. We have no description of it. The witness did not swear
to its correctness. He did not even say that it would illustrate
the subject about which he was testifying. He simply said: "I have
a model here." It is impossible for this Court to assume that the
judge at the trial was incorrect in refusing to permit such a model
to go in evidence.
The defendant J. C. Whiting was introduced as a witness, and in
the course of his testimony he was asked:
"What companies or smelters were purchasing ores from the
Colonel Sellers mine during the months of March, April, May, and
June, 1883?"
To which he answered as follows:
"A. We had in these months a contract running with the Harrison
Smelter, with the Arkansas Valley, with the Colorado
Page 132 U. S. 631
Smelting and Refining Company, the Pueblo, with the Kansas City,
and with the Argentine Smelting and Refining Company. I can't
remember all."
"Q. In making settlements during this time, did you receive
duplicate statements from them of the amounts of ore sold?"
"A. Ordinarily, we didn't get duplicate statements; we got the
original statements."
"Q. You received a statement?"
"A. Yes, sir."
"Q. Can you state what the gross receipts of ore sold from the
Colonel Sellers mine for the month of April, 1885, were?"
"A. I can."
"Q. Now state what they were."
"Plaintiffs object to the question on the ground that ore
shipments from the Colonel Sellers mine certainly can throw no
light upon this case; also the point argued at length, that a
mixture of high-grade ore from the stope in question with the
low-grade ores from the grounds of the Colonel Sellers mine would
so reduce the value per ton of ore from plaintiffs' property as to
make the statement on that basis manifestly unjust to the
plaintiffs. "
"The objection was sustained."
The counsel for defendant then said:
"I have a stipulation from the other side that the evidence, if
received at all, may be introduced in the shape of ore statements,
verified by the officers of the smelters furnishing them, so as to
dispense with the necessity of producing so many witnesses."
But this stipulations is nowhere produced in the record, nor is
there any verification of these ore receipts, nor any proof
whatever of their truth. The court, we think, very properly
rejected the testimony of Mr. Whiting on that subject, for it does
not appear that he himself personally knew anything about the
quantity of ore taken out during the period alluded to.
These seem to be all the errors assigned on which counsel for
plaintiffs in error rely. An exception was taken to the refusal of
the court to grant certain prayers for instructions offered by
defendants, but these were substantially given, although in
different language, in the charge of the court to
Page 132 U. S. 632
the jury. This charge presented in a clear and, as we believe,
correct light a sound view of the question of damages as it relates
to this case. To it no exception was taken, nor to any part of it.
On the whole, we do not find any error in the record, and the
judgment of the circuit court is accordingly
Affirmed.