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Pagel v. Yates

OPINION FILED NOVEMBER 21, 1984.

WILLIAM PAGEL, PLAINTIFF-APPELLEE,

v.

DON YATES, D/B/A REED YATES FARM, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLANT (DEAN KOEBER, THIRD-PARTY DEFENDANT).



Appeal from the Circuit Court of McLean County; the Hon. Wayne C. Townley, Jr., Judge, presiding.

JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

Plaintiff William Pagel sued defendant Don Yates for returning the wrong broodmare to plaintiff. The jury returned verdicts in plaintiff's favor on both a negligent and a conversion count, but the trial court held plaintiff was entitled to satisfy judgment on only one count. Defendant appeals, contending: (1) plaintiff failed to prove that he received the wrong horse or that defendant was negligent; (2) the court erred in refusing to allow him to present extrinsic evidence for impeachment purposes; (3) the admission of testimony concerning his net worth denied him a fair trial; (4) the court abused its discretion in excluding evidence of his attempts to return the horse; (5) the evidence did not support the jury's award on the conversion count; and (6) the court improperly instructed the jury on damages under the negligence count. Plaintiff cross-appeals, asserting the trial court erred in limiting him to satisfaction on only one count.

This dispute began in February 1977, when Jerry Coleman brought two mares to Reed Yates Farm, defendant's horse-breeding farm. Coleman owned one of the mares, a trotting bred horse named Phyllis Filter. Lawrence Harvey owned the other mare, Surprise Package. Coleman signed a contract with defendant to have Phyllis Filter bred to defendant's trotting stallion, Mr. Magoo. Surprise Package was to be bred to Winter Time, a pacing bred horse.

Coleman testified he identified each mare to a boy who worked on the farm. The boy led the horses away, and Coleman went into the barn to sign the breeding contracts with Bill Scott, defendant's farm manager. Scott, however, testified he saw Coleman unload the horses. After Coleman identified the horses, Scott placed a piece of tape on the halter of each horse for identification. Later, he branded a number on the hoof of each mare. Scott testified the mare Coleman identified as Phyllis Filter was bred to Mr. Magoo, and the one identified as Surprise Package was bred to Winter Time.

On April 26, Coleman sold Phyllis Filter to Pagel. Pagel testified he was more interested in the mare's pedigree than her appearance. Thus, he bought the horse although Coleman had only pointed her out from 20 yards away. The mare was in defendant's field along with 35 to 40 other horses. That same day, Pagel told Scott he still wanted Phyllis Filter bred to Mr. Magoo. On June 18, Pagel returned to the farm to pick up his horse. Scott gave him the horse branded with Phyllis Filter's number on the hoof. Pagel thought it was the same horse Coleman had shown him. The mare, which was in foal, turned out to be Surprise Package.

Harvey failed to pay his service and board bills on Surprise Package. The mare, which defendant believed was Surprise Package, and its weanling colt were sold to defendant at a sheriff's sale on November 2, 1978. The next day, defendant applied to the United States Trotting Association (USTA) for registration certificates on the horses. The USTA registers horses by means of a number tattooed onto the horse's inner lip, but the tattoos are difficult to read. The application stated the mare's tattoo number was 8066J. On November 4, defendant sold the mare to third-party defendant Dean Koeber for $450. Defendant also sold the colt, named Winter Mite, to Chester Hunt, for $1,000.

The USTA informed defendant that neither the mare nor the colt could be registered because the number on the application was registered to a horse named Ex Creed. Without a registration certificate, a horse cannot enter races. The USTA unsuccessfully attempted to contact Ex Creed's owners. Defendant contacted Koeber several times about the problem. Koeber told defendant the mare's tattoo number was 80663. He later told the USTA that it was 30663. On April 26, 1979, defendant offered to refund Koeber's money and repay any incidental expenses for the return of the horse. Although the parties negotiated, the mare was never returned to defendant. According to defendant, Koeber originally agreed to the offer, but in July, Koeber discovered he had Phyllis Filter and refused to return her. Koeber contended defendant never tendered the settlement money, so no exchange occurred. On August 2, a USTA tattoo technician read the number on Koeber's mare as 306AJ. The USTA identified the mare as Phyllis Filter.

Meanwhile, Pagel had been breeding Surprise Package. The mare had a second colt in 1979 and a third born in 1980. In August 1979, defendant informed Mr. Pagel that her husband had the wrong horse. Koeber and Pagel were in contact after this time, but they never discussed straightening out the matter. In 1981, Phyllis Filter fell into a well and drowned. Pagel also contacted Hunt. Pagel agreed to transfer Winter Mite to Hunt after Hunt agreed to pay Pagel 25% of the colt's winnings.

On April 28, 1980, Pagel filed suit against defendant. Defendant filed a third-party complaint against Koeber, alleging Koeber negligently caused plaintiff's damages. On October 17, 1983, the jury returned verdicts in favor of plaintiff on both a negligence and a conversion count. The jury assessed damages at $20,000 for each count. The jury also found in favor of Koeber on the third-party complaint. The trial court decided plaintiff could enforce judgment on only one of the counts.

Defendant first contends plaintiff failed to prove he received the wrong horse. Defendant maintains the only evidence proving the switch did in fact occur was plaintiff's hearsay testimony. Plaintiff testified defendant gave him the wrong mare and Koeber got Phyllis Filter. Plaintiff, however, admitted he knew only what his wife had told him after she had talked to defendant and the USTA. Defendant concludes the judgment must be reversed due to the admission of hearsay evidence.

• 1, 2 Error in the admission of evidence does not require reversal when there has been no prejudice or if the evidence does not materially affect the outcome. (Bullard v. Barnes (1983), 112 Ill. App.3d 384, 392, 445 N.E.2d 485, 491.) The evidence at trial overwhelmingly proved plaintiff received the wrong horse. Both Mrs. Pagel and Koeber testified defendant told them the horses had been switched. Even if defendant merely relied on the USTA when he made these statements, they were admissible because it is presumed a person has made an adequate investigation when he speaks against his own interests. (Campen v. Executive House Hotel, Inc. (1982), 105 Ill. App.3d 576, 588, 434 N.E.2d 511, 522.) Moreover, defendant himself testified he was satisfied the mare sold to Koeber was Phyllis Filter. Scott also testified the horses had been switched. Finally, defendant presented an evidence deposition of a USTA official who described the mix-up and attempts to resolve it.

Defendant next asserts plaintiff failed to prove defendant rather than Coleman was negligent. Coleman and Scott gave conflicting testimony on the cause of the switch. The credibility of the witnesses and the weight to be given their testimony are matters for the jury to consider. Mizowek v. De Franco (1976), 64 Ill.2d 303, 309-10, 356 N.E.2d 32, 35.

Defendant, however, contends the trial court erred in not permitting him to impeach Coleman. Coleman testified he never made a mistake when identifying horses in the past. Defendant offered the testimony of two witnesses who alleged Coleman had misidentified horses on a previous occasion. The trial court did not let the witnesses testify. Defendant asserts this evidence was crucial to his case because he premised his defense on Coleman's being responsible for the switch.

• 3-5 A witness may not be impeached as to collateral, irrelevant, or immaterial matters. If a party elicits such matters on cross-examination, he may not impeach the witness' answer. (Herget National Bank v. Johnson (1974), 21 Ill. App.3d 1024, 1028, 316 N.E.2d 191, 194.) The test for noncollateralness is whether the facts are relevant to a material issue in the case or whether the facts are independently admissible to discredit the ...


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