Tegen v. Chapin

176 Wis. 410 | Wis. | 1922

Rosenberry, J.

The plaintiffs contend that there was evidence upon which the case should have been submitted to the jury and that therefore the direction of a verdict by the court was error. It is argued that the defendant warranted the animal to be a breeder; that the plaintiffs purchased the animal in question in reliance upon the warranty; that she was bred on November 29, 1919, and in the ordinary course of events should have produced a mature calf on August 29, 1920; that on June 16, 1920, ten weeks prior to the full time, she aborted, giving birth to an immature calf born dead. And it is argued that the bare fact that the cow did not produce a mature calf was in itself sufficient evidence to carry the casé to the jury on the proposition of whether or not there was a breach of the warranty. In our opinion a warranty that a cow is a breeder does not amount to a guaranty that the cow will at the end of the full period of gestation, every time she is with calf, produce a live, properly matured calf. It may be said to be a matter of common knowledge that abortions occur occasionally, if not fre-cpiently, as a result of injury, straining, or from other natural causes having nothing to do with the animal’s capacity to produce a matured calf in the usual course of time under ordinary normal conditions. We are therefore of the opinion that the burden was upon the plaintiffs to establish by a fair preponderance of the evidence that the cow was at the date of the sale, on March 16, 1920, incapable of producing a mature calf. Upon this branch of the case the only evidence offered by the plaintiffs was that tending to show that the cow had a disease known as contagious abortion. Upon that issue it appeared without dispute that the defendant had never had contagious abortion upon his farm where the cow in question was born ánd reared, and there was no evidence tending to show that the cow' was at the time of sale infected, excepting that of one expert who testified in response to a hypothetical question that in his opinion the cow was infected with contagious abortion on March 16th. This same witness, however, testified that cows may have abortions without its being contagious; that such might have been the fact in this case; that his opinion was based upon the fact that another cow from this herd had aborted, it appearing, however, that the herd into which she was sold was an infected herd and had been for some time. It further appeared from his cross-examination that he based his opinion partly upon the fact that two heifers which had been bred were returned for the reason that they were not with calf, admitting, however, that

healthy females do not always beget one hundred per cent.; that they are doing well when they average a' sixty to sixty-five per cent.; that “a good many things cause abortion — a mere straining, jumping, or being hooked, or something of that kind without leaving a mark, might cause abortion.” This witness further testified that he had been on defendant’s farm; that he had never found contagious abortion in any of his herds at any time; that contagion might be in a car in which the animal was shipped; most of contagion is had by shipping in cars. Feeding out of the same mangers, putting cattle in the same barns, or running with other stock, will spread the contagion. It is considered that the opinion of this witness is not sufficient to raise an issue of fact for the jury. It is clear from the testimony of this witness that the abortion may have been produced by accident, may have been contracted in the course of shipment, may have been contracted by the animal running with other stock. The answer was a mere guess or conjecture. The only fact upon which the expert could base his opinion that this cow was infected on March 16th with contagious abortion was the mere fact that the calf was born dead prematurely. The opinion based upon that fact, under the evidence in this case, is not within the field of scientific knowledge and therefore not a proper subject of expert testimony. The jury was just as able to determine whether or not the animal was infected as was the witness, and opinion evidence should not extend to the merits of the controversy where it is not clearly within the realm of scientific knowledge. Sullivan v. M., St. P. & S. S. M. R. Co. 167 Wis. 518, 525, 167 N. W. 311; Benson v. Superior Mfg. Co. 147 Wis. 20, 132 N. W. 633; Lyon v. Grand Rapids, 121 Wis. 609, 99 N. W. 311.

The proof in this case was not sufficiently certain and definite to establish the fact that the cow was infected with contagious abortion on the date of the sale, and under the evidence it remained a matter of doubt, speculation, and conjecture.

“Opinion evidence alone is not conclusive in any case. The jury must pass upon the probabilities, and unless the opinion relied on is within the scope of reason and common sense’ it should not be regarded at all. .If that were not so, injustice would often rule in the jury room, because . . . there is no theory so preposterous but that men can be procured to support it under oath from the witness stand by expert evidence. On questions involving skill and experience in such matters, experts must be called from the necessities of the case, for want of better evidence; and when stripped of all the elements of mere conjecture, and pretense, and partisan influence, it is valuable, and what is left will rarely appear improbable to ordinary comprehension. It is the duty of courts and juries to do that, — to subject ex•pert opinions to all reasonable tests to determine their credibility.” Baxter v. C. & N. W. R. Co. 104 Wis. 307, 330, 80 N. W. 644; Bourda v. Jones, 110 Wis. 52, 85 N. W. 671.

It appears without dispute that the abortion occurred on June 16th and that the plaintiffs gave no notice thereof to the defendant until August 12th.

“Sec. 1684f — 49, Stats. . . . But, if, after acceptance, of the goods, the buyer fails to give notice to the seller of any breach of the promise or warranty within a'reasonable time after the buyer knows, or ought to know, of such breach, the seller shall not be liable therefor.”

Such was the law prior to the adoption of the Uniform Sales Act. Northern E. M. Co. v. H. M. Benjamin C. Co. 116 Wis. 130, 92 N. W. 553.

While ordinarily the 'question of what' constitutes a reasonable time is a question of fact for the jury, in this case, where there was a delay- of fifty-seven days',' there being no circumstances excusing or justifying the delay, it is held that notice was not given within a reasonable time as a matter of law, and the seller was therefore not liable for a breach of warranty had there been one. Plaintiffs lived in Price county, 130 miles from Iola, the place of sale. There was regular daily communication between the places. The plaintiff IT. W. Tegen had notice of all the facts of which he ever had notice that the cow was not a breeder when the cow aborted on the 16th day of June. His excuse for failing to give notice is that during the interim he was endeavoring to discover whether or not the cow had contagious abortion, but upon the claim now made by him — and that is that the fact that the cow aborted established a breach of warranty— the question of whether or not the abortion was contagious was immaterial. Upon the other aspects of the case theré is no proof here, excepting the mere fact that she aborted, that the cow was infected at the time of the sale. We think in this case a delay of nearly two months was not justified. In transactions of this character, relating to the sale or exchange of personal property, while under the Uniform Sales Act the acceptance of the goods does not waive the right of recovery for breach of warranty, it charges the purchaser with the duty of giving notice, and that within a reasonable time. If the object of the statute is to be accomplished — that is, the parties enabled to make such investigations or take such steps as may be necessary to protect their rights, — it must be held, in the absence of circumstances excusing or justifying delay, that the buyer must move with some degree of promptness under all the circumstances. This is the rule adopted in applying sec. 1684f — 48, Stats., and there is no reason why it should not obtain in applying sec. 1684f — 49, the time specified in each section being a reasonable time. J. L. Owens Co. v. Whitcomb, 165 Wis. 92, 160 N. W. 161; J. B. Bradford P. Co. v. Baal, 166 Wis. 134, 164 N. W. 822.

By the Court. — Judgment affirmed.