Fringer v. Venema

• Decision Date: 01 February 1965
• Citation: 26 Wis.2d 366,132 N.W.2d 565
• Parties: Harold FRINGER et al., Respondents, v. Andrew VENEMA, Appellant.
• Court: Wisconsin Supreme Court

Page 565

132 N.W.2d 565

26 Wis.2d 366

Harold FRINGER et al., Respondents, v. Andrew VENEMA, Appellant.

Supreme Court of Wisconsin.

Feb. 1, 1965.

Rehearing Denied March 30, 1965.

See 133 N.W.2d 809.

The plaintiffs, Harold Fringer and Henry Schmitt, rented pasture land from one Bruce Hartwell. The rental period was from May to September. Schmitt pastured eleven head of Holstein heifers, and Fringer nineteen head of heifers on the Hartwell land.

The defendant, Andrew Venema, pastured his heifers in the pasture on his farm adjoining the Hartwell pasture. Venema had an Angus bull which he allowed to run in his pasture. Venema's portion of the partition fence was in fair condition and the Hartwell portion of this fence was in poor condition.

Four of Schmitt's heifers and 11 of Fringer's heifers were prematurely bred while in the pasture. Venema admitted that his Angus bull had crossed the fence into the Hartwell pasture. It also appears that at time some of the heifers owned by the plaintiffs were in Venema's pasture.

Schmitt testified that the market value of his heifers would be about $250 before they were bred and about $90 after. Fringer testified that the market value of his heifers would be about one-half after they were bred and that he sold the heifers the following February and March. On cross-examination Fringer stated the market value before they were bred was 18 to 20 cents per pound and that right after they were bred the value would be the same. It does not appear when he discovered they had been bred.

The trial was held before the court without a jury. The judge took the matter under advisement and in due course filed a memorandum decision and findings of fact, conclusions of law and judgment.

The findings of fact are, in part, as follows:

'4. That during the time between May and September of 1960, the defendant's bull gained entrance to the Hartwell pasture and serviced eleven heifers of the plaintiff, Fringer, and four heifers of the plaintiff, Schmitt;

'5. That the defendant's bull, in order to accomplish this feat, had to be six months of age or older, and of this fact the court takes judicial notice;

'6. That the presence of the bull in the Hartwell pasture constitutes a running at large contemplated by Wisconsin Statutes 172.01, and imposes absolute liability for the damage done by the said bull.'

The court further found damages sustained by Schmitt to be $300 and Fringer $875. The defendant appeals from a judgment awarding those amounts and costs to plaintiffs.

Kenney, Korf & Pfeil, East Troy, for appellant.

Morrissy, Morrissy, Sweet & Stowe, Elkhorn, for respondents.

BEILFUSS, Justice.

Plaintiffs base their cause of action upon sec. 172.01, Stats.:

'Animals not to run at large. No stallion over one year old, nor bull over six months old, nor boar, nor ram, nor billy goat over four months old shall run at large; and if the owner or keeper shall, for any reason, suffer any such animal so to do he shall forfeit five dollars to the person taking it up and be liable in addition for all damages done by such animal while so at large, although he escapes without the fault of such owner or keeper; and the construction of any fence enumerated in section 90.02 shall not relieve such owner or keeper from liability for any damage committed by an animal of the enumerated class upon the inclosed premises of an adjoining owner.'

The parties agree that an owner of an animal described in this statute is subject to absolute liability if he allows such animal to run at large even though it escapes the enclosure without fault of the owner or keeper. ¹

The defendant contends that because the statute imposes strict liability the plaintiff must prove every element of the statute and that the trial court was in error in taking judicial notice that the bull was at least six months old. Admittedly the plaintiffs did not prove the age of the bull nor does it appear in the record.

The first issue for determination is, can the court take judicial notice that a bull old enough to breed fifteen heifers in a period from May to September was at least six months old at the time of the breeding.

The trial court did not advise the parties that it would take judicial notice of this fact nor was the court requested to do so by the plaintiffs.

The defendant did not move to review the findings in the trial court but did file three affidavits and a letter with the record on appeal. Two of the affidavits were made by local veterinarians who stated they did not believe it was impossible for a bull calf of less than six months of age to fertilize a heifer. One affidavit was by a farmer with many years experience who stated he knew of more than one occasion where a bull calf of less than six months bred a heifer. The letter quoted Dr. Stephen S. Roberts, a specialist in veterinary obstetrics, to the effect that it is 'highly improbable' that a bull of six months was sufficiently mature to fertilize a heifer but 'we would hestiate to say that it is totally impossible.'

The defendant urges that the trial court was in error by taking judicial notice that the bull was at least six months old to be able to breed the plaintiffs' heifers because the age at which bulls can fertilize heifers is not a matter of common knowledge and that it is disputable and not impossible that a bull of less than six months has such capacity.

In Ritholz v. Johnson (1944), 244 Wis. 494, 501, 502, 12 N.W.2d 738, 741, in considering judicial notice, this court said:

'* * * Matters of common knowledge are not limited to those matters of which practically everyone has knowledge.

In a complex society such as ours there are in many fields of activity matters which are within the knowledge of all those who are associated with the activity of which the general public knows little or nothing. For instance in the railroad business hundreds of thousands of people are employed. No doubt many things are matters of common knowledge and are assumed and acted upon by those engaged in the business daily if not hourly. In a case involving some phase of the railroad business a court might well inform itself as to those matters. It may do this by resort to encyclopedias, authoritative works upon the subject, reports of committees, scientific bodies, and any source of information that it generally considered accurate and reliable or it may as in State ex rel. Carnation M. P. Co. v. Emery, supra [178 Wis. 147, 189 N.W. 564], resort to a judicial investigation of the facts. As ordinarily considered taking judicial notice does not include these methods of obtaining knowledge of matters of which the court may take judicial notice but of which it has no knowledge.'

Professor Wigmore in 9 Wigmore, Evidence (3d ed.), pp. 547, 548, sec. 2571, states:

'Scope of Principle. The scope of facts that may be noticed includes:

'1. Matters which are actually so notorious to all that the production of evidence would be unnecessary;

'2. Matters which the judicial function supposes the judge to be acquainted with, in theory at least;

'3. Sundry matters not included under either of these heads; they are subject for the most part to the consideration that though they are neither actually notorious nor bound to be judicially known, yet they would be capable of such instant and unquestionable demonstration, if desired, that no party would think of imposing a falsity on the tribunal in the face of an intelligent adversary.'

Appellate Courts Use of Facts Outside of the Record by Resort to Judicial Notice and Independent Investigation, 1960 Wisconsin Law Review 39, written by our present Chief Justice, represents an enlightened view of when judicial notice may be taken. He there said.

'* * * Even under the theory that courts only take judicial notice of matters of common or general knowledge, it is recognized that judges sometimes have to look beyond their own personal knowledge to acquaint themselves with facts of which judicial notice may properly be taken. * * *

'However, the tendency is to extend judicial notice beyond the field of facts of common knowledge to the sphere of those facts 'capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy.' * * *

'* * *

'Courts will take judicial notice of 'scientific facts which have been well established by authoritative scientists and are generally accepted as irrefutable by living scientists.' * * *'

McCormick ² suggests that the trend is shifting from the test of 'common knowledge' to 'verifiable certainty.'

We subscribe to the rule that the trial court may in its discretion take judicial notice of facts of 'verifiable certainty' either upon its own motion or upon request of a party to the action. If the fact to be noticed is not one of general common knowledge but can be verified to a certainty by reference to competent authoritative sources, and is to used as an adjudicative as distinguished from a legislative fact, the trial judge or the party requesting judicial notice should notify the parties or the adversary, as the case may be, so as to afford them an opportunity of consulting the same sources or of producing others. This does not mean that there will be a trial of text books, but rather it serves only to apprise the court whether the subject is verifiably certain or whether the issue must be proved and determined as a fact question. ³

We deem the fact question here namely whether a bull must be over six months of age to be capable of fertilizing fifteen heifers during the period of May to September to be subject to judicial notice if such fact is verifiably certain. However, before judicial notice of such fact can be taken, adequate notice must be given to the...