#### PORTER, Adm'r., Respondent, *v.*HAWKINS, Appellant.

(No. 1,474.)

(Submitted February 25, 1903.

Decided March 7, 1903.)

*Evidence*— Value—Opinions *of Eon-Expert Witnesses*— Own*ership*— Conversion—Instructions—Review.

1. Since the opinion oí a non-expert witness, with reference to matters concerning the ordinary affairs of life where from the very nature of the question involved its answer necessarily depends upon mere opinion or judgment, may properly'be given in evidence, — a non-expert witness may testify as to the value of hay and of a barn.

2. In an action for conversion against a sheriff, who sold as the property of plaintiff’s husband buildings and hay alleged to belong to plaintiff, testimony of her witness as to where she secured the lumber that went into the buildings, what it cost, and that it had been paid for by her, is competent on the question of her ownership.

3. An instruction must be read and considered as a whole.

*Appeal frpm District*Court, *Custer County; C. R.*Loud,, *Judge.*

ActioN by T. J. Porter, administrator of Mary Eussell, deceased, against James B. Hawkins, a sheriff of Custer county. Judgment for plaintiff, and defendant appeals.

Affirmed.

*Mr. C. R.*Middleton, and *Mr. George W.*Farr, for Appellant.

*Messrs. Strevell & Porter,*for Kespondent.

ME. JUSTICE HOLLOWAY

delivered the opinion of the court.

In 1894, Leb C. Harmon recovered a judgment in the district court of Custer county against D. H. Eussell, and bad execution issued thereon, and placed in the hands of the appellant, Hawkins, who was the sheriff of that county, for service. The shexdff levied the same upon 78 tons of hay, a houses a barn, and two outbuildings. As soon as she became aware of such levy, Mary *487Russell, the wife of D. H. Russell, made a third-party claim to the property seized, and demanded of the sheriff its return to her; but, notwithstanding such notice and claim of ownership on her' part, the sheriff proceeded to sell the property, and applied the 'proceeds from such sale towards the satisfaction of the judgment recovered by Harmon against D. H. Russell. Thereupon the plaintiff commenced this action against the sheriff for the conversion of the property and for damages, alleging that the property so* seized and sold was of the value of $809. The sheriff’s answer put in issue all the material allegations of the complaint, and set up affirmatively that the plaintiff, Mary Russell, is an Indian woman of the Sioux tribe of Indians; that she has never severed her tribal relations, but is still receiving rations and annuities from the federal government as a, member of such tribe. These allegations were denied in the reply. Upon the trial the plaintiff offered in evidence the testimony of the witnesses Clark, Dugan, Zeigler, and D. H. Rlussell to prove the value of the property seized by the sheriff, and also offered in evidence' a patent from the United States to her for 160 acres of land under the allotment act. Among others, the court gave to' the jury instruction numbered 12, which is as follows: “The court instructs the jury that if the jury believe from a, preponderance of evidence that the hay in question, or any 'part of it-, was in the year 1895 cut upon the allotment of the plaintiff, then such hay would, in law, be the property of the plaintiff, if not otherwise disposed of; and, although such hay may have been stacked off of such allotment, it would still be the property of the plaintiff, and the defendant could not lawfully seize the same, or sell it, upon the execution against D. II. Russell; and under this, condition of evidence tho plaintiff is in this action entitled to recover her damages from the defendant for taking such hay and selling the same by the defendant under the execution.” The jury returned a verdict in favor of the plaintiff for the sum of'$539, and judgment was entered thereon for that amount, from which judg: ment and an order denying defendant’s motion for a new trial this appeal is prosecuted.

*488Tbe first six assignments of error have to do witb tbe action of tbe court in admitting’ in evidence tbe testimony of tbe witnesses Clark, Dugan, Zeigler, and Russell as to1 tbe value of tbe property in controversy, and tbe admission in evidence of .tbe plaintiff’s patent.

One of the material issues raised by tbe pleadings and contested at the trial was tbe value of tbe property seized by tbe sheriff. Clark and Dugan each testified that be knew tbe plaintiff’s ranch, knew something of tbe character of tbe bay grown thereon, and the value of bay of that general character at tbe time of the levy and sale by the sheriff. Tbe witness Zeigler testified that lie bad bad some experience in constructing such buildings as tbe barn in controversy, bad seen the one seized by tbe sheriff, and knew something of its value. If is true that under a severe cross-examination these witnesses each modified bis direct testimony somewhat. All of this evidence was objected to on the ground that the several witnesses bad not qualified as experts. Upon this phase of tbe case we content ourselves with the citation of decisions from this, court, though numerous cases might be cited in support of the proposition that with reference to those matters concerning tbe ordinary affairs of life, where, from tbe very nature of the question involved, its answer necessarily depends largely upon mere opinion or .judgment, tbe opinion of a nonexpert witness may properly be given in evidence; and this has been adjudged to include questions of distance, weight, value, etc. *(Holland*v. *Huston,*20 Mont. 84, 49 Pac. 390; *Emerson v.*Bigler, 21 Mont. 200, 53 Pac. 621.) It is only in those cases where a previous habit of study is essential to tbe formation of tbe opinion sought to> be put in evidence that all but experts are excluded from giving in evidence an opinion. *(Spear*v. *Drainage*Commissioners, 113 Ill. 632.)

Tbe witness Russell was permitted, over tbe objection of the defendant, to state where the plaintiff secured tbe lumber which went into1 tbe construction of tbe buildings, what it cost, and that it had been paid for by tbe plaintiff. The patent from the government was introduced in support of the plaintiff’s claim *489that she owned the property, and particularly tbe bay, wbicb sbe contended at tbe trial bad been cut from tbe particular piece of land described in the patent. All of this testimony was properly admitted. It was some evidence of her ownership of tbe property in controversy. It may bave bad.much or little weight with tbe jury, but it was -competent and material, and tbe court committed no error in submitting it to tbe jury for their consideration.

Particular stress is laid upon tbe alleged error of tbe court in giving instruction No. 12, upon tbe theory that by tbe last sentence of that instruction' tbe court assumed to' tell the jury what tbe evidence on one particular feature of tbe case was, and to that extent invaded tbe province of tbe jury. But, read in connection with, and in the light of, the first portion of the instruction, and considering tbe instruction as a whole — which must necessarily be done — the apparent defect disappears altogether, and the instruction,' though inartifieially drawn, correctly states the law.

We bave examined the other errors assigned, and find no merit in them. The evidence is- amply sufficient to sustain the verdict for the amount returned.

Before the bearing was bad in this court, tbe plaintiff and respondent died, and T. J. Porter, administrator of tbe estate of said Mary Bussell, deceased, was substituted as plaintiff and respondent.

Tbe judgment and order appealed from are affirmed.

*Affirmed.*

Me. Justice MilburN, being ill, did not hear tbe argument and takes no part in tbe foregoing decision.