Ver Steegh v. Flaugh

• Decision Date: 14 June 1960
• Docket Number: No. 50015,50015
• Citation: 251 Iowa 1011,103 N.W.2d 718
• Parties: Harry VER STEEGH, Appellee, v. O. K. FLAUGH, Appellant.
• Court: Iowa Supreme Court

Page 718

103 N.W.2d 718

251 Iowa 1011

Harry VER STEEGH, Appellee, v. O. K. FLAUGH, Appellant.

No. 50015.

Supreme Court of Iowa.

June 14, 1960.

Hammer, Matthias & Tyler, Newton, for appellant.

Bray & McCoy, Oskaloosa, for appellee.

GARFIELD, Justice.

Plaintiff Ver Steegh brought this law action against defendant Flaugh to recover damages for claimed breach of warranty of a boar sold by defendant to plaintiff. Following trial to the court without a jury plaintiff had judgment for $1,203.62 from which defendant appeals.

The original petition was drawn on the theory of breach of express warranty. It alleged defendant warranted the boar at time of sale to be healthy and capable of use for breeding purposes. At the close of the evidence the court granted plaintiff permission to amend his petition by alleging breach of implied warranty that the boar was healthy and free from disease. The judgment is based on a finding of breach of such implied warranty. One of the errors defendant assigns, to be considered later, is the grant of permission to so amend plaintiff's petition.

Plaintiff and defendant are farmers living in adjoining counties. Defendant raises purebred Duroc and Hampshire hogs. November 12, 1956, plaintiff purchased from defendant a Hampshire boar for $75. One Loynachan also purchased a boar from defendant at the same time. Plaintiff's boar was taken to his farm and put with another boar for two weeks. He had purchased the other boar four or five months earlier at a sale barn. After the two weeks plaintiff's two boars were turned out with his 59 gilts or young sows for about four weeks. Several of the gilts aborted.

Plaintiff's veterinarian, Dr. Belknap, drew blood from the Flaugh boar and three of the gilts that aborted and sent it in separate test tubes for analysis to the veterinary diagnostic laboratory at Iowa State University at Ames. The laboratory's report of the analysis was that the boar and one gilt reacted to brucellosis, commonly called Bang's disease, and the other two gilts were suspects. The usual effect of this disease on bred sows is that they abort. The veterinarian witnesses agreed the disease may be transmitted to the sow by an infected boar in the breeding act. One such witness, apparently disinterested, testified it is the most common way of transmitting the disease. He and another veterinarian testified Bang's disease causes sterility in boars and destroys their usefulness for breeding.

When Dr. Belknap received the report of the analysis of the blood from the Flaugh boar and three of plaintiff's gilts he advised plaintiff to dispose of all his gilts because they had been bred to the boar and most of them probably would abort. Plaintiff followed this advice. Another veterinarian testified that when there is Bang's disease in a drove of swine the quickest, safest and most practical course is to dispose of all of them.

Plaintiff testified that when he and Loynachan purchased the boars defendant said they were good breeders and were clean, 'which I interpreted as meaning they were healthy and I had no knowledge to the contrary and relied upon his statement which I believed to be true.' Defendant testified he was offering the boars sold plaintiff and Loynachan and five other boars for sale for breeding purposes, supposed plaintiff wanted for such purposes the animal sold him and defendant sold it therefor. He admitted that if the boar had Bang's disease it would not qualify as a breeder.

About December 24, 1956, plaintiff sold his other boar, purchased at the sale barn, to Loynachan. This was after most of plaintiff's gilts were bred but before any of them aborted and before plaintiff knew the Flaugh boar reacted to Bang's disease. Loynachan's 20 gilts were bred to the boar he purchased from defendant on November 12 but they 'kept coming back in heat and did not settle.' Loynachan sold this (Flaugh) boar as a nonbreeder.

January 15, 1957, Dr. Peak, a veterinarian, drew blood from the sale barn boar and Loynachan's 20 gilts and sent it in separate tubes for analysis to the laboratory at Ames. Report of the analysis was that two of the gilts reacted to Bang's disease, the others and the sale barn boar were negative.

I. Defendant first assigns error in the overruling of his motion to strike as hearsay the evidence of Dr. Carbray, veterinarian in charge of the laboratory at Ames, as to results of the analyses of the blood taken from plaintiff's and Loynachan's hogs. The motion, made at the end of defendant's cross-examination of the witness on this part of his testimony, stated that the witness did not record the results of the tests on the reports, did not sign them and was not certain he supervised 'the placing of that material.'

We will consider this assigned error in connection with the second one--admission in evidence of the laboratory reports, exhibits A to F inclusive, of the analyses of plaintiff's and Loynachan's hogs. Defendant objected to the exhibits as hearsay, not properly identified and there being no proper connection between the exhibits and the animals in question. In addition exhibits C and E were objected to as incompetent, irrelevant and immaterial because they relate to leptospirosis, a separate disease from Bang's although similar to it.

Exhibit F is the only one of these exhibits which refers to plaintiff's hogs--the Flaugh boar and three gilts from which, as stated, Dr. Belknap drew blood on January 7. The other exhibits refer to Loynachan's hogs. His 20 gilts were bred to the boar he purchased from defendant at the same time plaintiff obtained the boar in controversy.

Dr. Belknap testified he drew blood from the boar plaintiff purchased from defendant and from three of plaintiff's gilts, sent it to the laboratory at Ames by parcel post in a well packed carton designed for this purpose, mailed it himself in the post office at Knoxville with the regular amount of postage on the package, it was identified as having come from him, exhibit F is in his handwriting and accompanied the blood specimens. The exhibit is on a form evidently prepared and furnished veterinarians by the laboratory at Ames. It gives the veterinarian's and herd owner's names and addresses, tag number and kind of each animal bled, date bled, the number affixed to each tube of blood, the age, sex and breed of each animal. All this information, according to Belknap, was entered on exhibit F by him. Entries in the columns headed 'Test dilutions' and 'Test results' as to each animal, together with the total number of nonreactors, reactors and suspects, the date the blood was received at the laboratory (as to exhibit F, one day after it was mailed), and the name of the veterinarian in charge (Dr. Carbray) were made at the laboratory. There was no objection to any of this evidence of Belknap.

Dr. Peak, another veterinarian, testified in detail that he took samples of blood from Loynachan's hogs, put the samples in separate test tubes properly identified and gave them to his office girl to put in mailing cases and send to the Ames laboratory. He or his office girl made out the exhibits similar to exhibit F and he received them back from the laboratory with the results of the tests. The office girl testified she or her assistant, under her supervision, checked and packaged the samples for mailing and mailed them to the laboratory.

Dr. Carbray testified 'Exhibits A, B, D, and F are charts representing tests performed at my laboratory. Whether I personally saw them I cannot say. They were done under my supervision and I was responsible for them. They are accurate to the best of our ability which we feel is pretty good. Exhibits A, B, D and F came under my supervision. They refer to blood samples submitted to the 'lab' which we tested and recorded the results of these exhibits. The blood samples came to the laboratory with the exhibits.' The witness described in detail the method of testing the blood samples and recording the results thereof. His name was signed to the exhibits by one of the technicians. Defendant made no objection to Carbray's testimony.

Dr. Bennett, another veterinarian at the Ames laboratory, testified with reference to exhibits C and E, reports of tests for leptospirosis on Loynachan's hogs. He said that after blood samples are tested the blood is discarded. Although the general objection to these two exhibits might have been sustained it is not pointed out, nor is it apparent, that they were prejudicial to defendant.

At best it is doubtful that defendant's motion to strike Dr. Carbray's testimony as to results of the tests was timely. As stated, defendant did not object to it as it came in and grounds of the motion should have been apparent before it was made. See in this connection Kuiken v. Garrett, 243 Iowa 785, 804, 51 N.W.2d 149, 160, 41 A.L.R.2d 1397, and citations; State v. Woodmansee, 212 Iowa 596, 613-614, 233 N.W. 725; State v. Van Tassel, 103 Iowa 6, 13, 72 N.W. 497. See also Lowman v. Kuecker, 246 Iowa 1227, 1230-1231, 71 N.W.2d 586, 588-589, 52 A.L.R.2d 1380.

4 C.J.S. Appeal and Error § 290b (1), page 872, states, '* * * an objection, to be timely, must ordinarily be made at the earliest opportunity after the ground of the objection becomes apparent.'

Aside from the above we are not persuaded it was error to overrule defendant's motion to strike as hearsay the testimony of Dr. Carbray or the objection of hearsay to exhibits A to F. Gearhart v. Des Moines Ry. Co., 237 Iowa 213, 216-220, 21 N.W.2d 569, 571-572; Ipsen v. Ruess, 239 Iowa 1376, 1383-1384, 35 N.W.2d 82, 88; Olesen v. Henningsen, 247 Iowa 883, 888-892, 77 N.W.2d 40, 43-45; Farmers Insurance Exchange v. Moores, 247 Iowa 1181, 1192-1193, 78 N.W.2d 518, 526; Chicago Cosmetic Co. v. City of Chicago, 374 Ill. 384, 29 N.E.2d 495, 499.

Under these and other authorities therein cited it was unnecessary to produce the individuals employed in the laboratory who in the regular course of...