#### Charles L. Holman *v.*George S. Edson.

October Term, 1906.

Present: Rowell, O. J., Watson, Haselton, Powers, and Miles, JJ.

Opinion filed March 4, 1908.

*Witnesses*— Party’s *Improper Answer to Proper Qtiestion*— - *Ground of Reversal.*

An improper answer by a witness, other than a party, to a proper question is not error, where neither the court nor the examining *50counsel are in fault; and that they were without fault will be presumed, the contrary not appearing.

Such an answer to such a question is ground of reversal, where it appears to have been given through the fault of the prevailing party or his counsel; and it is through their fault, if given with their knowledge or consent.

But a party’s improper answer to a proper question stands different, for the law presumes that he intended to answer improperly; and if the answer is material, it is ground of reversal. *Gutter é Martin*v. *Stceels,*69 Vt. 154, distinguished.

Case for negligence. Plea, the general issue: Trial by jury at the June Term, 1906, Orange County, *Tyler,*J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The exceptions do not show whether the court instructed the jury to disregard plaintiff’s improper answer. The opinion states the case.

*William Baiehelder,*and *E. W. Smith*for the defendant.

*M. M. Wilson,*and *R. M. Harvey*for the plaintiff.

Miles, J.

This is an action on the case for alleged negligence in the care of plaintiff’s horse. The negligence alleged was that the defendant kept the horse in a stall having a hole in it on the right hand side as one entered it, in which the horse received the injury resulting in its death. The defendant denied that there was any such hole and claimed that the injury to the horse resulted in a different manner from that claimed by the plaintiff, and without his fault.

The plaintiff testified in his own behalf, and among other things, testified on direct examination and without objection, that the hole “had blood around it and somewhere it had run down on the boards, and it was where his horse was through it.” This testimony was immediately followed by the following question and answer, viz.:

Q. “You don’t know that?” A. “I understood that, that was what they told me.” To this answer the defendant objected and excepted in form, and if the exception was to be limited to that alone, no error would exist; but the defendant claims that the testimony of the plaintiff above quoted is covered *51by the objection and. exception. That testimony consisted of the statement of a fact as of the plaintiff’s own knowledge, which, if true, was admissible; but the question and answer objected to, brought out the fact, that it was not of the plaintiff’s own knowledge, but was merely hearsay. Until that fact was brought out, the defendant was not called upon to object, to save his rights; but, the exceptions show, that as soon as it was called out, the defendant did object and except. While the form of the exception was to the answer, the ease shows that it was in fact to the quoted testimony of the plaintiff next preceding it, and counsel on both sides so treated it in their arguments. They have also treated such testimony as not responsive t9 any question asked by either counsel, and in considering the same we have treated it as counsel have.

The rule is well settled in this State that an improper answer by a witness to a proper question is not ground of error, if given without fault of the court or examining counsel. *State*v. *Marsh & Buzzell,*70 Vt. 288, 40 Atl. 836, and eases there cited. That they were without fault will be presumed, in the absence of anything ¡appearing to the contrary. *Frary*v. *Gusha,*59 Vt., 257, 9 Atl. 288; but this rule, we think, should not be extended to parties when testifying. In the case of a witness, such an answer is ground of error, if given through the fault of the opposing party or his counsel, and it is through their fault, if given with their knowledge or consent. In the case of a party, the law presumes that he knows and intends what he testifies to, and if it is material such answer constitutes reversible error.

In the case at bar the answer was material to the question at issue, and was therefore error for which the cause should be reversed.

This holding is not in conflict with the case of *Cutler & Martin*v. *Skeels,*69 Vt. 154, 37 Atl. 228. It will be noticed upon a careful examination of that case, that the Court only recites the rule relating to witnesses in general, without making the application of that rule to the case then in hand; and the case is decided upon the ground that the answer had some bearing upon a material point in the case, and also upon the further ground that it was harmless, if immaterial.

*52As the case must be reversed upon the point above considered, we take no notice of the other question raised.

*Reversed and remanded.*