Erickson v. Webber, 6978

• Decision Date: 23 June 1931
• Docket Number: 6978
• Citation: 58 S.D. 446,237 N.W. 558
• Court: South Dakota Supreme Court
• Parties: ENOCH ERICKSON, et al, Respondents, v. WILLIAM WEBBER, et al, dba Webber & Kindred, Appellants.

58 S.D. 446

237 N.W. 558

ENOCH ERICKSON, et al, Respondents,

v.

WILLIAM WEBBER, et al, dba Webber & Kindred, Appellants. South Dakota Supreme Court Appeal from Circuit Court, Minnehaha County, SD Hon. John T. Medin, Judge #6978—Affirmed Parliman & Parliman, Sioux Falls, SD Attorneys for Appellants. Lyon, Bradford & Grigsby, Sioux Falls, SD Attorneys for Respondents. Opinion filed Jun 23, 1931

ROBERTS, J.

This action was commenced to recover damages for the death of plaintiffs’ sheep, alleged to have been sustained by reason of the negligence of the defendants in compounding and administering a remedy for intestinal worms. The defendants are veterinarians engaged in the practice in the city of Sioux Falls and vicinity, and the plaintiff, Enoch Erickson, was the tenant of the three other plaintiffs named. The plaintiffs were the joint owners of the ninety sheep to which the remedy was administered by the defendants.

It appears from the evidence that the treatment was completed during the forenoon by defendant Webber, and that he then had dinner with the Ericksons. After dinner, the parties inspected the sheep which had been treated and found that some of them were dead, and according to the testimony of the plaintiff Erickson, others were lying on the ground with a greenish foam issuing from their mouths. During that afternoon and the following night forty-two of the sheep died, and nineteen more within a few days. Upon trial of the case, a verdict was returned for the plaintiffs.

Defendants appeal from the judgment rendered thereon, and from order denying motion for a new trial.

A veterinarian, called as a witness by the plaintiffs on an assumed state of facts, was asked, “What would you say was the cause of the death of the sheep that died?” He answered: “Faulty administration of the medicine, or, in other words, the contents of the medicine must have gone into their lungs.” The objection to the question was stated as follows: “This is not an instance where it is proper to interpose a hypothetical question. Counsel has before him the books and can examine the witness as to the proper treatment for worms from his experience and knowledge of the books, but it isn’t a proper instance for a hypothetical question, and it is objected to on the further ground that it is not a fair statement of the testimony as it appears here at this time.’ Counsel for defendants concede in their briefs “that this was a case within the domain of expert testimony,” and do not urge on appeal the objection that it was not an instance where it was proper to interpose a hypothetical question. From our examination of the record, we are satisfied that there is testimony tending to prove the facts assumed in the question under consideration. The defendants also, on this appeal, contend that the question was an invasion of the province of the jury. We are of the view that the form of the objection was too general to call the trial court’s attention to the precise point on which counsel relies. There was no intimation in the objection stated that counsel regarded the question as an invasion of the province of the jury. Crouch v. National Livestock Remedy Co., 205 Iowa 51, 217 N.W. 557; Howland v. Oakland Consol. St. Ry. Co., 110 Cal. 513, 42 P. 983.

The plaintiff Erickson was asked:

“Q. Anything said about who was to blame for the death of the sheep?”

“Q. What I asked you was what the doctor said with reference to the responsibility or blame for killing the sheep?”

Another witness was asked the question, “What was the conversation as you recall?” These questions were objected to on the ground that they related to an offer of settlement. The law favors the settlement of disputed claims out of court, and an offer to compromise or settle a disputed claim will not be received as an admission of the party making the offer. Reagan v. McKibben,(1898); Busch v. S. D. Cen. Ry. Co., 135 N.W. 757. This rule, however, does not exclude the admission of distinct or independent facts, though they were made during the discussion of the compromise. Jones of Evidence, § 291; see note Ann. Cas. 1918E, 439.

“A distinct admission of a fact, made by a party during an attempt at compromise, may be given in evidence against the party making it, though an offer made for the purpose of effecting a settlement cannot. The reason is, that such admissions are in no way necessary to a treaty for a compromise, which is a mere attempt to buy a peace, and are supposed to be made, like other admissions, and for some one of the various causes which induce them.”

Rideout v. Newton, 17 N.H. 71, 73.

The questions were not objectionable for the reasons urged. No reference was made to an offer of a compromise or settlement.

At the close of plaintiffs’ evidence, the defendants moved for a directed verdict, and renewed the same at the close of the evidence. The overruling of such motion, and the insufficiency of the evidence to sustain the...