McCann v. Ullman

• Decision Date: 18 March 1901
• Citation: 109 Wis. 574,85 N.W. 493
• Parties: MCCANN v. ULLMAN ET AL.
• Court: Wisconsin Supreme Court

109 Wis. 574

85 N.W. 493

MCCANN

v.ULLMAN ET AL.

Supreme Court of Wisconsin.

March 18, 1901.

Appeal from circuit court, Outagamie county; John Goodland, Judge.

Action by Joseph P. McCann against Joseph Ullman and others. From an order granting a new trial, plaintiff appeals. Affirmed.Sanborn, Gleason & Sleight and Lyman Barnes, for appellant.

Hugh D. Ryan (John Bottensek, of counsel), for respondent.

CASSODAY, C. J.

This action was commenced in the municipal court of Ashland county to recover $450 damages for the alleged breach of warranty on the sale of four horses, and, upon issue joined and trial had, the plaintiff recovered judgment for that amount. The defendants appealed to the circuit court, and the plaintiff thereupon amended his complaint, and increased his claim for damages to the amount of $1,500. The defendants answered by way of admissions, denials, and counter allegations. At the close of the trial the jury returned a verdict in favor of the plaintiff, and assessed his damages at $800. The defendants thereupon moved the court upon the minutes of the judge to set aside the verdict and for a new trial upon numerous grounds stated, whereupon the court “ordered that the said verdict herein be, and the same is hereby, set aside, and a new trial be granted herein, because the court erred in instructing the jury and in rejecting the evidence of the witness F. H. Graves, offered by defendants.” From that order the plaintiff brings this appeal.

It is conceded “that the granting of a new trial is very much in the discretion of the trial court, and that its order granting the same will not be reversed unless there clearly appears to have been an abuse of such discretion. * * * The only exception to this rule is where it affirmatively appears upon the record that such order was based upon a misapprehension of the law.” Schillinger v. Town of Verona, 85 Wis. 595, 55 N. W. 1040, and cases there cited; Clasgens Co. v. Silber, 87 Wis. 357, 58 N. W. 756;Wilson v. City of Eau Claire, 89 Wis. 47, 61 N. W. 290. The question recurs whether it appears affirmatively upon the record in this case that the order is based upon a misapprehension of the law.

1. One of the alleged errors upon which the order is based is that the evidence of the witness Graves was improperly rejected. He was sworn as a witness on behalf of the defendants, and testified that he had been “a veterinary surgeon” at Appleton for over 40 years. He was then asked, “Do you know the disease known as ‘distemper’ or ‘strangles' in horses?” The plaintiff objected on the ground that the witness had not shown himself to be competent, and the objection was sustained. The statute provides that “no person shall practice veterinary medicine and surgery,” nor “be competent to testify as an expert witness in any court in matters pertaining to the diseases of animals, unless he be registered” as therein prescribed, and that no person should “be so registered unless he is a graduate,” or the holder of a certificate, as therein prescribed, “or shall have practiced veterinary medicine and surgery in this state” for five years, as therein stated. Section 1492f, Rev. St. 1898, as amended by chapter 82, Laws 1899. It does appear that the witness had been a veterinary surgeon at Appleton for many years, but at the time of sustaining such objection it had not been made to appear that he had actually “practiced veterinary medicine and surgery” during any portion of such period; and it was never made to appear that he was ever “registered as a veterinary physician and surgeon,” as required by the statute. Id. Thus it appears that the objection to the question was properly sustained. Besides, the witness was subsequently allowed to testify, over objection, that he had treated horses for 40 years and over, and a great many cases of distemper during that time; that from his own experience the usual time of incubation would be from two to four days--might run up to six or eight days--before the glands would be swollen, and that the swelling might not appear until three days after the nose began to run; and that the distemper was not a serious one unless there should be a complication of some other disease with it. We must conclude that the trial court was not justified in treating such rulings as errors.

2. The important question is whether the trial court was justified in holding that there had been error in charging the jury. We perceive no error in the portion of the charge to which exception is taken to the effect that, if the jury found from a fair preponderance of the evidence that the distemper had fully developed in these horses at the time they were delivered to the plaintiff; that they had at that time contracted the disease; that the seeds of the disease were then in the horses, although it did not develop until after the horses came into the possession of the plaintiff,--then that constituted an unsoundness, under the warranty given by the defendants. Thus it has been held that “an allegation that a horse had the glanders at the time of sale is sustained by proof that at such time he had the seeds of that disease, which afterwards developed into the perfect disease.” Woodbury v. Robbins, 10 Cush. 520. See, also, Crouch v....