Miske v. Thom

• Decision Date: 06 December 1910
• Citation: Miske v. Thom, 144 Wis. 178, 128 N.W. 858 (Wis. 1910)
• Parties: MISKE ET AL. v. THOM.
• Court: Wisconsin Supreme Court

144 Wis. 178

128 N.W. 858

MISKE ET AL.

v.THOM.

Supreme Court of Wisconsin.

Dec. 6, 1910.

Appeal from Circuit Court, Eau Claire County; A. J. Vinje, Judge.

Action by E. J. Miske and others against Leonard Thom.Judgment for plaintiffs, and defendant appeals.Affirmed.W. H. Frawley and T. F. Frawley, for appellant.

Sturdevant & Farr, for respondents.

WINSLOW, C. J.

This is an action for breach of warranty of a horse, which the plaintiffs purchased of the defendant under an alleged warranty of soundness, but which was found to be suffering from glanders soon after the purchase.The defendant denied the warranty, but upon the trial a general verdict was found for the plaintiff, assessing damages at $121.77, and from judgment on the verdict the defendant appeals.

The errors claimed will be briefly noticed.

1.It is claimed that there was no evidence tending to show that the horse had glanders at the time of the sale.This claim is untenable.The time of the sale was in dispute, but the horse was delivered on the 12th day of May, and there was sufficient evidence to justify the jury in finding that the sale took place within a week or two prior to that date.Two veterinary surgeons examined the horse in the early part of June, and testified that it was then suffering from an advanced case of glanders, which would take two or three months to develop.This was sufficient evidence, if believed by the jury, to warrant the conclusion that the horse was suffering from the disease when purchased.

2.It is said that the veterinary surgeons were not qualified to testify as experts because they were unregistered (McCann v. Ullman, 109 Wis. 574, 85 N. W. 493), and because they did not show that they had ever had knowledge of glanders from personal experience in treating the disease.Neither objection has any weight.The statute requiring registration of veterinarians was repealed by chapter 334,Laws 1907.While the veterinarians did not testify to personal experience with glanders they were both shown to be graduates of veterinary colleges, and to have actively practiced a number of years.They did not state that they derived their knowledge from medical works exclusively unaided by practical experience.The defendant did not choose either preliminarily or otherwise to ask them with reference to their practical knowledge, and the fair inference is that they were testifying from experience, and not from books.Kath v. W. C. R. Co., 121 Wis. 503, 99...