Miske v. Thom

144 Wis. 178 | Wis. | 1910

WiNslow, C. J.

This is an action for breach of warranty of a borse wbicb tbe plaintiffs purchased of tbe defendant under an alleged warranty of soundness, but wbicb was found to be suffering from glanders soon after tbe purchase. Tbe defendant denied tbe warranty, but upon tbe trial a general verdict was found for tbe plaintiff, assessing damages at $121.77, and from judgment on tbe verdict tbe defendant appeals.

Tbe errors claimed will be briefly noticed.

1. It is claimed that there was no evidence tending to show that tbe borse bad glanders at tbe time of tbe sale. This claim is untenable. Tbe time of tbe sale was in dispute, but tbe borse was delivered on tbe 12th day of May, and there was sufficient evidence to justify tbe jury in finding that tbe sale took place within a week or two prior to that date. Two veterinary surgeons examined tbe borse in tbe early part of June, and testified that it was then suffering from an advanced case of glanders wbicb would take two or three months to develop. This was sufficient evidence, if believed by tbe jury, to warrant tbe conclusion that tbe borse was suffering from tbe disease when purchased.

2. It is said that tbe veterinary surgeons were not qualified to testify as experts because they were unregistered (McCann v. Ullman, 109 Wis. 574, 85 N. W. 493), and because they did not show that they bad ever bad knowledge of glanders from personal experience in treating tbe disease. Neither objection has any weight. Tbe statute requiring registration of veterinarians was repealed by cb. 334, Laws of 1907. While tbe veterinarians did not testify to personal experience with glanders, they were both shown to be graduates of veterinary colleges' and to have actively practiced a number of years. They did not state that they derived their knowledge from medical works exclusively, unaided by practical experience. The defendant did not choose either preliminarily or otherwise to ask them with reference to their practical knowledge, and the fair inference is that they were testifying from experience and not from books. Kath v. Wis. Cent. R. Co. 121 Wis. 503, 99 N. W. 217; Bucher v. Wis. Cent. R. Co. 139 Wis. 597, 120 N. W. 518.

3. Complaint is made because the court did not give to the jury certain specific instructions as to the burden of proof and the preponderance.of evidence, but as these subjects were fully and correctly covered in the general charge of the court there was no error in refusing the instructions asked by the appellant.

Some minor objections are made, but they are so trivial and manifestly without foundation that we do not find it necessary to treat them in detail.

By the Court.- — Judgment affirmed.

ViNJE, J., took no part.