*1 149 costs in denied, but is denied Stats. The motion is plaintiff this court. costs to be taxed affirmed. No

By Judgment Court.— in this court. v. Appellant, Foods, Inc., Fur

another, Copartners, Mink d/b/a Chasetown Ranch, Respondents. 5,May

April 1959.

1-0 o *3 there were briefs Brazeau

For & Brazeau appellant by Johns., and Pappas of Wisconsin & Rapids, Roraff, Flaherty Crosse, of La and Robert Johns. oral argument D. For the there was a brief B. respondents by Wayne Donovan, Goodman, Gleiss, Schlintz of Breit- Viroqua, and oral Mr. L. & Gleiss J. Sparta, argument by enfield Goodman and Mr. Schlintz. first submits that the

Brown, jury finding Tri. JC 1 is the evidence. on not supported by question is the rule that when jury’s “It well-recognized findings *4 attacked, are when have had the trial they particularly is limited the issue whether court’s our approval, inquiry that, is credible evidence under reasonable any any there view, in such With the rule mind we supports findings. consider that it is to recite the necessary only testimony in which the Some of it is jury’s findings. supports dispute, but as the we must testimony that it disputed recognize was for the to determine where the truth lies. . jury . .

“The is restricted to a consideration of the facts jury be even though they undisputed. They proved may give effect to such inferences as be from drawn reasonably may them. Milwaukee Automobile Olson v. [Case cited.]” 106, 109, 111, Ins. Co. 266 Wis. 62 N. (1954), W. (2d) 549, 63 N. 740. (2d)W.

Ammerman a frozen bought large quantity City December, 1956, horse meat in late and to feed it to began 3, his mink on March 1957. He also fed his animals livers and a beef pork called “North Star.” Both by-product of these foods were obtained sources other than Tri from The mink female birth to their City. gave offspring 5th, about the month of and were weaned about May June at which time the mink to eat the food young began sup- and the other dealers to. plied by referred The 7th, mink to die a commenced about and rate of July high until continued 23d. Ammerman mortality August con- sulted Tri and also consulted a veterinarian who con- ducted and who sent the also food to post-mortems The veterinarian laboratory that at testing. suspected least of the diet were contaminated and this caused portions trouble, the and he advised successive items of eliminating diet until the items were identified. At trouble-causing first Ammerman ceased the livers but there was feeding pork no death rate the and after several the change days pork- North liver diet was restored and Star was There stopped. resumed, was still no and North Star was on change 1, 1957, Tri meat horse was August stopped. 23d, until deaths continued with no August resumption meat, horse but on 23d the deaths ceased. The sick August their illnesses of displayed symptoms during tarry 1957, After the death August, rate droppings. dropped normal although down to continued feeding Star but liver and North did not products resume pork 1st. Ammerman food after August testified that in his there had been no method change preparing that he or his did not practices, food feeding change *5 4^ in and made in the water

utensils used no feeding, change the given mink.

It is the detailed evidence seven of unnecessary repeat mink raisers who testified for Ammerman. In separate brief, Tri horse meat these the was wit- City bought by his. nesses at about the same time that Ammerman bought Their stocks of mink reacted as Ammerman’s did various manner and same similar the approximately periods of time after had started meat. City they eating These witnesses also said that their mink ceased dying after of Tri meat in a short time. City These being deprived mink, a a raised on farms with of feed- variety variety methods sanitation and with various articles ing respecting food, of diet the Tri reacted the same supplementing factor to be the common way. appears feeding meat. The disease followed after the mink quickly had used it in their the cure diets and followed not steadily after the Tri diet was eliminated. long The Tri counsel that there a mink was suggests which from one ranch to another from epidemic spread unidentified causes. This would be more if persuasive there was evidence that mink were also this manner dying which in this were never fed on the Tri period City product. There is no such evidence.

We think of Ammerman and his experience fellow meat, ranchers warrants an inference that the Tri City factor, the common was contaminated and the deaths being In were caused addition Ammerman had a num- thereby. witnesses, ber of expert veterinary, and bacteriologists, who us to have biologists, laymen appear imposing Dr. testified that credentials. he took samples James meat from City frozen stock and Ammerman’s identified Klebsiella, its contamination Shigella, Salmonella. and, he are enteric' These said poisons given sufficient time, over sufficient will doses and mink deaths. produce

lO 1-0 *6 The onset varies to the concentration of according poison and the animal's of resistance. will power Recovery vary also at different rates when the is removed. Small poison which Dr. a tested showed samples concentra- heavy James tion of doses in the poison indicating large feeding portion. Dr. took Tri food from the other samples City James ranches which were similar troubles and which having he found samples contained Klebsiella bacteria. Some sam- which he took from blocks the frozen ples food were but he found negative no blocks which were His negative. were from samples analysis the inside of blocks procured meat, of frozen with sterile extracting instru- samples ments. He testified:

“There is in no question mind but what the bacteria my in we found the meat in were there at the time the meat was processed.” veterinarian, witness

Expert whom Ammer- Hartsough, man in called when he was disturbed about his mink dis-

eases, testified that he made four and found autopsies Klebsiella in infection each carcass. He testified that all disease,— of the mink he saw he as of that diagnosed dying Klebsiella. An Ammerman testified that expert also Klebsiella at the time the horse was present meat processed and frozen Tri would remain by City alive or active although frozen for such as this periods endured and would freezing disease when produce thawed out and fed to the mink. He testified that sanitation be out might helpful keeping contamination at the ranch but if the acquired food was contaminated Ammerman before it the meas- got sanitary ures would be of little help.

It is true that Tri had its own expert biologists whose to us look as qualifications just as impressive Ammerman’s and these experts the tests con- disparaged ducted the Ammerman by scientists. Tri City did experts

VO 1-0 meat was contam- find that the suspected therefore con- Klebsiella and with inated disease-producing mink also had was not cluded that it present. to their stock meats that fed they ranchers to testify to us to be strictly These bad results. appear without that the verdict say are unable to We questions. jury 1 2 is unsupported the answers to questions these jury findings. we must sustain and therefore evidence Pearl male concerns the deaths two Question no that there are submits truly breeders. quite these or deaths of the illnesses evidence concerning details are merely specula- therefore the causes of death animals and *7 ani- the sick and deceased But it to us that tive. appears them, are, difference There is no mals of —mink. —all care, other condi- living their or feeding, evidence regarding Ammerman’s in the same that died period tions. They to a con- evidence support mink died. Without any other conclusion, a reasonable inference may think that we trary causes mink died from the the that these be drawn by jury be a hold this to killed their We found to have companions. inference, these cir- under just speculation permissible cumstances, the cause of these deaths. concerning that the Pearl were of the mink testified pair

The owner each. The valued them jury of of a fair market value $750 the of the In our view answers $1,200 special for the at pair. their the mink and value have with two verdict dealing must credible, in their and we support evidence competent them. sustain insufficient that there is of value proof

Tri contends City died, were the which surviving mink which or of the It is to review unnecessary or pelting. breeding impaired that the seems to us we only say proof the evidence and amount of loss. the jury determining to sustain sufficient the verdict the findings special dealing Tri attacks City Marshall, 5 and 6. questions to with damage n

c Ammerman resold and Tri delivered some the City meat to a rancher Marshall. named Marshall’s mink died in the same manner about the same time after starting stock, feed this meat to his as was Ammerman’s ex- just The same perience. evidence the cause of Marshall’s supports loss as of Ammerman’s. In his claim for in this damages action Ammerman includes against City, potential claim which Marshall make him. Tri may against contends that it is error allow this element of damages. submits that Ammerman’s is one action which he for breach of brings against The warranty. bears this out. Then Tri complaint relies Cohan upon v. 584, Associated Fur Farms 261 Wis. 53 N. (1952), W. 788, which holds that (2d) action for breach of warranty does not from an carry ultimate across an buyer intermediate seller against seller. This is true original because be- tween first seller and the last of a series of purchasers there is no of contract. In privity that case Cohan plaintiff contaminated food from bought Associated Fur Farms which Associated' had from bought Armour. decision deals with the mainly Cohan sued both pleadings. Associated 'Fur Farms and Armour. We held that Cohan’s action did not lie Armour for breach against for the warranty Also, reasons above stated. we held that Associated Fur *8 Farms, in Armour, its action against could not charge Armour the against prospective Associated liability But Cohan. this was because Associated had sued already Armour, in another court and recovered from in damages which suit Associated omitted to include its prospective claim Associated Cohan. He was against by required do so at that time and could not do so thereafter. We did not hold or that Associated would not have been imply able to include in its first suit Armour the against con- prospective for which sequential damages Associated be might liable to Cohan. the contrary. Quite

158 bar, suit

In at Marshall is not bringing any the case Tri either for breach of warranty, negligence, against City, facts, can his Ammer- or else. If Marshall prove anything Stats., be him sec. 94.72 man will liable to (14) (b), upon sell who shall which under penalty any person prohibits adulterated, in- feeds, substance mixed or with any any Violation of the statute to the health of the livestock. jurious Fur is se. Metz v. Foods per (1958), negligence Medford 96, In Arndt Brothers N. 106. 90 W. (2d) Wis. (2d) 627, 80 Fur Foods 274 Wis. v. Minkery (1957), Medford the 776, to have we that it is adulteration W. held (2d) N. In that contaminated botulinic by poisoning. food and this botulism case the bacteria with resulting developed in all with the Klebsiella poisoning seems to us to be on fours v. Minkery In Arndt Brothers case. present Medford 636, Foods, Fur we said: supra, page is, however, food itself. The not a natural of the “It part is the to the food and so bacteria is an foreign organism an use illustra- toxin it when it To grows. which produces an in- foods that contain tion in brief—as given plaintiffs an element in the natural growth substance which is jurious coffee, caffeine in the food could cite the opium one seeds, Botulinic the tobacco tar tobacco. white or poppy is an injurious cannot in that it category; toxin substance be placed to the by something entirely foreign produced food, an adulteration. and its food constitutes presence sold, adulterated is the statute is violated.” When the food so of Tri meat is the two governed by adulteration Cases, Fur Foods and the facts supra, Medford the sale of the adulteration being proved, product, Ammerman, If or violates the statute. whether by resulted, be to Marshall causal could negligence damage action lie Marshall sale and an would by found such This consequential potential Ammerman. damage against collect for might against is which one *9 if his It is clear that proof permits. Marshall’s is recovery dependent against on breach of warranty by that or it is affected lack of by between privity Marshall and Tri City. motions after verdict the

Upon trial court deemed the prospective damages from Ammerman to Marshall were In an excessive. the trial court opinion stated that lowest value mink of lost Marshall which by could be sus- tained by $2,247.60. evidence was The had allowed jury $4,500. Then the court that said loss due to of depreciation Marshall’s herd should not exceed That $500. means is the value sustainable highest the evidence. by $500 $1,000. had jury The trial given court an gave option $2,247.60 to Ammerman to for accept loss of mink. Such an Ammerman, to option given the lowest sustainable figure, is correct. But the trial then court Ammerman an gave to for option accept depreciation on Marshall’s stock. $500 Ammerman exercised these The court options. had just decided that the verdict for this loss could not exceed $500. Therefore this is the highest sustainable figure and Ammer- man should have been lowest, given take the option not the such highest, amount. This was error and would invalidate the to Ammerman option given re- would trial, extent, a new at least to that quire that Ammer- except man in his brief consents:

“If, however, this court should conclude that the trial mean, court did in reference to the loss sustained by Loren Marshall due to fur, of the value depreciation of the that the sum of was the sum that a highest $500 could jury assess that loss, properly of the then portion we are further willing forego demand for that of the portion to avoid the damages the costs and of another expense trial for purpose the actual determining amount of loss sus- tained Loren Marshall because of depreciation value of the fur.”

160 no cures the error and preju- this concession

We consider can result to City, the erroneous option dice because of as so corrected. affirm the decision is that our should conclusion damages elimination any except by

judgment $500 modified, the As so for of Marshall’s stock. depreciation should be affirmed. judgment and, as so reduced by By Judgment $500 Court.— modified, affirmed. is judgment In v. Schrank Gennrich (concurring). Fairchild, J. 876, 87, 93, I 93 N. W. (2d) sug 6 Wis. (2d) (1959), are in the rule as to where damages a options gested change case, that was personal-injury deemed excessive. While to fix judge the reasons given requiring some of in a case also dam apply involving the least amount would of the I modification judg concur the. age property. however, case, because of the concession of in this ment counsel.

Oosterwyk another, v. Appellants, Milwau kee, Respondent.* 5, April May 1959.

* denied, costs, 26, rehearing with on Motion for $25 1959. June