Valiga v. National Food Co.

• Decision Date: 20 April 1973
• Docket Number: Nos. 271,s. 271
• Citation: 58 Wis.2d 232,206 N.W.2d 377
• Parties: , 12 UCC Rep.Serv. 830 George VALIGA et al., d/b/a Valiga Brothers, a co-partnership, Plaintiffs- Respondents, v. NATIONAL FOOD CO., Defendant-Appellant, Lawrence Lewis et al., Third-Party Defendants-Appellants. William BOECKER, Plaintiff-Respondent, v. NATIONAL FOOD CO., Defendant-Appellant, Lawrence Lewis et al., Third-Party Defendants-Appellants. Edward BRECKE, Jr., Plaintiff-Respondent, v. NATIONAL FOOD CO., Defendant-Appellant, Lawrence Lewis et al., Third-Party Defendants-Appellants. Edward BRECKE, Sr., Plaintiff-Respondent, v. NATIONAL FOOD CO., Defendant-Appellant, Lawrence Lewis et al., Third-Party Defendants-Appellants. Gilbert SMITH, Plaintiff-Respondent, v. NATIONAL FOOD CO., Defendant-Appellant, Lawrence Lewis et al., Third-Party Defendants-Appellants. to 275.
• Court: Wisconsin Supreme Court

Page 377

206 N.W.2d 377

58 Wis.2d 232, 12 UCC Rep.Serv. 830

George VALIGA et al., d/b/a Valiga Brothers, a co-partnership, Plaintiffs- Respondents, v. NATIONAL FOOD CO., Defendant-Appellant, Lawrence Lewis et al., Third-Party Defendants-Appellants.

William BOECKER, Plaintiff-Respondent, v. NATIONAL FOOD CO., Defendant-Appellant, Lawrence Lewis et al., Third-Party Defendants-Appellants.

Edward BRECKE, Jr., Plaintiff-Respondent, v. NATIONAL FOOD CO., Defendant-Appellant, Lawrence Lewis et al., Third-Party Defendants-Appellants.

Edward BRECKE, Sr., Plaintiff-Respondent, v. NATIONAL FOOD CO., Defendant-Appellant, Lawrence Lewis et al., Third-Party Defendants-Appellants.

Gilbert SMITH, Plaintiff-Respondent, v. NATIONAL FOOD CO., Defendant-Appellant, Lawrence Lewis et al., Third-Party Defendants-Appellants.

Nos. 271 to 275.

Supreme Court of Wisconsin.

April 20, 1973.

Fulton, Menn & Nehs, Appleton, for Natl. Food.

Gwin & Fetzner, Hudson, for Lawrence Lewis and others.

Tinkham, Smith, Bliss & Patterson, Wausau, for plaintiffs-respondents.

CONNOR T. HANSEN, Justice.

We consider the several issues presented on this appeal to be:

1. Did the trial court err in answering the first question of the special verdict 'Yes,' thereby ruling as a matter of law that the coho was unfit as mink breeder food?

2. Was sufficient evidence presented at trial to sustain the jury's award for male and female breeder loss?

3. Did the trial court err in failing to give the 'absent witness' instruction?

4. Have appellants waived alleged trial court error by failing to move for a mistrial?

5. Did the trial court err in admitting into evidence plaintiffs' computations as to alleged damages and in submitting them to the jury?

6. Did the trial court err in refusing to admit witness Eidem's opinion as to plaintiffs' losses?

7. Was the issue of insurance improperly and prejudicially interjected into the case at the voir dire?

8. Were appellants prejudiced by the statements, which referred to insurance, made during the testimony of one of the plaintiffs?

9. Are plaintiffs entitled to prejudgment interest?

10. Did the trial court err in refusing to submit the issue of implied warranty, running from Lewis to National, to the jury?

11. Is there credible evidence to support the jury's verdict as to the negligence of Lewis?

The issues between the plaintiffs and National and Lewis were argued and briefed jointly by National and Lewis and will be referred to as the contentions of the appellants.

Coho Unfit as a Matter of Law.

At the conclusion of the testimony and prior to submission of the case to the jury, the trial court at the request of plaintiffs, and over objection, answered the first question on the special verdict, 'Yes.' ¹ The trial court determined as a matter of law that the coho salmon sold by National to the plaintiffs was unfit for use as mink breeder feed. On review, this court must examine the evidence most favorable to the party against whom the motion is directed and if there is any evidence which will sustain his contentions, the motion should have been denied. ² An issue should be taken from the jury and a verdict directed against a party only when the evidence gives rise to no dispute or is so clear and convincing as reasonably to permit unbiased and impartial minds to come to but one conclusion. Zillmer v. Miglautsch (1967), 35 Wis.2d 691, 151 N.W.2d 741; Jacobson v. Greyhound Corp. (1965), 29 Wis.2d 55, 138 N.W.2d 133.

In the instant case, upon our review of the evidence adduced and rationally considered as to the fitness of the coho sold by National to the plaintiffs, it cannot be said that a dispute exists as to the fitness of the coho as food for breeder mink. All of the experts, both veterinarians and scientific researchers, testified that in their opinion the coho was unfit for use as a food for breeder mink.

Whether appellants knew or should have known that the coho was unfit at the time of sale, and what particular contaminant carried by the coho caused plaintiffs' losses, is immaterial as to the trial court's determination. The question answered by the trial court in the affirmative was whether the coho was unfit for breeder mink food, not whether the appellants knew or should have known it was unfit. While a dispute may exist as to the particular contaminant contained within the coho that was responsible for plaintiffs' losses, no dispute exists as to the fact that the fish contained some harmful contaminant. The trial court did not err in ruling as a matter of law on this issue.

Male and Female Breeder Loss.

Upon the conclusion of testimony, National moved to dismiss any cause of action of the plaintiffs with respect to breeder loss. The trial court denied the motion and in its opinion following motions after verdict stated that it found competent and credible evidence from which the jury could make the determination as to the damages awarded.

In the event there is failure of proof on the part of the plaintiffs, the verdict for the plaintiffs should not be accepted by the court, Ernst v. Greenwald (1967), 35 Wis.2d 763, 151 N.W.2d 706; and where no credible evidence exists in support of the verdict, the verdict will be overturned, Yelk v. Seefeldt (1967), 35 Wis.2d 271, 151 N.W.2d 4. However, in determining whether credible evidence exists, the evidence must be viewed from a standpoint most favorable to the plaintiffs, Smith v. Atco Co. (1959), 6 Wis.2d 371, 94 N.W.2d 697, and it is only necessary to consider the testimony which sustains the verdict. Olson v. Milwaukee Automobile Ins. Co. (1954), 266 Wis. 106, 62 N.W.2d 549, 63 N.W.2d 740.

Appellants do not claim that the value of plaintiffs' breeder mink was speculative, ³ but that there is no credible evidence demonstrating that the breeders had been genetically harmed.

We are of the opinion that there was sufficient credible evidence to raise a jury issue and also to support its determination thereon. Both Drs. Hildebrandt and Hartsough, called by the plaintiffs, testified that in their opinion to a 'reasonable veterinary certainty' the adult breeders fed the coho and the kits born after the introduction of the coho should not be retained as breeder mink for the following year. The opinions of these doctors were introduced into evidence without objection from the appellants as to the witnesses' competency to give such an opinion. Both doctors were well qualified and experienced. Dr. Hildebrandt was a practicing veterinarian since 1958, specializing in mink and dairy cattle fertility. Dr. Hartsough had long been practicing in the veterinary profession in the mink industry and over a span of some twenty to twenty-five years had written numerous articles in this field.

Dr. Hildebrandt conducted his own feeding trials and testified that mink fed coho do not reproduce as well the following year and that levels of DDT and its metabolites remain in the body, of the mink up to ten years after they had been exposed to it.

Plaintiffs, as experienced mink ranchers, and Ned E. Hood, an expert in breeder selection and value, testified as to the same opinion.

Such evidence supports the plaintiffs' contentions that the genetic quality of their respective breeders had been damaged.

Appellants introduced evidence and experts who testified to the contrary. They further argue that their experts are more qualified in the field of genetics. While such testimony places the issue in dispute, it does not command reversal. The weight of testimony and credibility of witnesses are matters for the trier of fact and are not to be disturbed if more than one reasonable inference can be drawn from credible evidence. ⁴ It is not the function of the Supreme Court to review questions of credibility of witnesses. ⁵

There is competent and credible evidence from which the jury could determine the plaintiffs' breeder minks were irrevocably damaged as to their genetic value. Furthermore, we believe the appellants are attempting to apply an improper test as to the reasonableness of the damages awarded.

Upon discovering the effects of the coho upon their mink herds, the plaintiffs determined that the breeder mink could no longer produce acceptable kits and 'pelted' them out. The breeders were killed and sold for their pelt values, which was substantially less than their value as breeders. At trial, plaintiffs sought damages to compensate for this loss.

Appellants argue that the breeders ability to propagate was not permanently damaged; that the plaintiffs erroneously 'pelted' out their breeders; and that the appellants should not be liable therefor.

The test should not be whether the actions of the plaintiffs, in attempting to mitigate their damages, were right or wrong, but rather whether they were reasonable. ⁶ The question of reasonableness is one for the jury. There is sufficient evidence to establish the conduct of the plaintiffs as reasonable.

Absent Witness Instruction.

Plaintiff, Gilbert Smith, testified that soon after he discovered his whelping problems, he sent three of his female breeders that had lost young to Ralston-Purina in St. Louis, Missouri, for testing. Two more were sent in August. He further testified that they had been killed for examination but that he had received no written report as to their findings as of the date of trial. No reports of Ralston-Purina were admitted into evidence and no witnesses therefrom were called.

Appellants requested the trial court to instruct the jury as provided by Wis J I--Civil, Part I, 410, that when a party fails to call a material witness within his control, or whom it would be more natural for that party to call than the opposing party, and the party fails to give a satisfactory explanation for his failure to call the witness, then the failure to produce such a witness gives rise to an inference that the testimony would be unfavorable.

Appellants contend that an inference must arise that the evidence...