Wheatcraft v. Myers

• Decision Date: 17 December 1914
• Docket Number: No. 8438.,8438.
• Citation: 57 Ind.App. 371,107 N.E. 81
• Parties: WHEATCRAFT v. MYERS.
• Court: Indiana Appellate Court

57 Ind.App. 371

107 N.E. 81

WHEATCRAFT

v.MYERS.

No. 8438.

Appellate Court of Indiana, Division No. 2.

Dec. 17, 1914.

Appeal from Circuit Court, Bartholomew County; Hugh Wickens, Judge.

Action by Noble Myers against Harvey H. Wheatcraft. From a judgment for plaintiff, defendant appeals. Affirmed.E. A. McAlpin, of Greenwood, and Charles S. Baker and Frank N. Richman, both of Columbus, for appellant. Brown & Brown, of Indianapolis, Miller & Barnett, of Franklin, and John Rynerson, of Columbus, for appellee.

IBACH, J.

This action was for damages occasioned by reason of false and fraudulent representations made by appellant at a public sale of live stock on November 10, 1910, at his farm in Johnson county. Appellee charged in his amended complaint of two paragraphs that 22 hogs bought by him for $107.80 at this sale were afflicted with cholera from which they and 21 other hogs with which they were put died; that appellant at the time of the sale knew the hogs had cholera, and falsely and fraudulently represented to appellee that they were sound, upon which representation appellee relied, not knowing it to be false. In the first paragraph, it is alleged that the 22 hogs, if as represented, would have been worth $187.50, and that amount in damages is asked. In the second, it is averred that the 21 hogs were worth $125, and that appellee's farm was damaged by infection $500; the demand being for $1000. The cause was tried by a jury, upon the issue formed by answers of general denial to each paragraph of complaint, and a verdict was returned for appellee for $120, upon which judgment was rendered. The only error assigned is in overruling appellant's motion for new trial.

It is first asserted that the verdict is not sustained by sufficient evidence, and is contrary to law, for the reasons that fraud is never presumed, but must be clearly proved, and that the evidence does not show that the hogs sold appellee, at the time of the sale, or thereafter, had cholera, or that, if they had cholera, appellant either knew it at the time of the sale, or recklessly stated as a fact that they did not have cholera, when examination would have shown that they did; that the evidence rather shows that by examination he could not have determined that his hogs had cholera on the day of the sale.

[1] We may as well state at the outset that, were we permitted to weigh the evidence, we would have to find that the evidence weighs strongly in appellant's favor, upon some points essential to appellee's case. But, although a trial court has some discretion to overrule a verdict because it is contrary to the weight of the evidence (Cincinnati, etc., R. Co. v. Madden, 134 Ind. 462, 34 N. E. 227), an appellate tribunal in this state is not permitted to do so, and the only question for us is whether, laying aside all evidence except that which tends to support the verdict, such evidence is sufficient to let the verdict stand.

[2] There is evidence to the effect that appellant on the day of the sale represented the hogs to be sound and all right, fit to go into any man's herd. There is evidence that the hogs purchased by appellee were sick the next morning after he removed them to his farm, and all died shortly after with the cholera; also, that the hogs which he already had on his farm died with the cholera after coming in contact with these hogs. There is evidence that other hogs purchased by other persons at the sale died with the cholera shortly afterwards, and one witness testified that the morning after the sale the hogs which he bought refused to eat and looked sick, so he refused to take them from appellant's premises, and another witness saw a dead sucking pig on the premises the day after the sale.

The weak point in the evidence is as to whether it was shown that appellant had knowledge that the hogs sold were sick on the day of the sale, or could have had such knowledge in the exercise of reasonable care. It was shown that there were two dead hogs on appellant's farm in September, but appellant states that one of these was killed by being run over with a wagon; the other got caught in a barn door. One witness saw hogs at threshing time in August on the farm, which looked sick to him, like they had cholera; but appellant and all the other witnesses having knowledge of his farm deny this, and there is no showing that if the hogs were sick then he had any knowledge of it. Further, this was so remote a time from the day of the sale that it would have little bearing upon his knowledge that day. Appellant testifies, and there is no direct evidence to contradict him, that he knew of no signs of sickness among his hogs the day of the sale, or prior thereto, and saw nothing to indicate that they were not sound. There is, however, the evidence of one witness that some of the hogs on the day of the sale were lying piled up together, and did not want to get up, of another that they looked sick to him, and therefore he did not buy any, of another that there was a sick sow the day of the sale, and of appellee that he saw two small pigs vomit, one of which he afterwards bought. This evidence of appellee himself is all the evidence which even tends to show any sickness on the day of the sale in the hogs which he bought. Appellant states that the sow which one witness said was sick the day of the sale was merely crippled; that this sow and the hogs which the one witness refused the morning after the sale, because they would not eat, never became sick, and some were sold at the stockyards, and some of them were still on his farm at the time of the trial; that none of the hogs remaining on his place died; that he had never had cholera on the place; that the sucking pig which was dead the day after the sale had been mashed by the sow lying on it, and it was in evidence that hogs often vomited because they had been overfed, and this was not a special sign of sickness. There are but two or three of many witnesses for appellee (half a dozen or more of whose witnesses have suits pending against appellant similar to that of appellee) who testified to any signs of sickness among the hogs the day of the sale, and some of these did not see signs of sickness until after appellant had made the representation which is the foundation of this suit. We may again state that the verdict is, upon the question of appellant's knowledge of sickness of the hogs on the day of the sale, very much against the weight of the evidence.

[3] However, there is no doubt that many hogs bought at that sale became sick and died shortly after their removal to the farms of appellee and other witnesses, so soon thereafter that the jury could scarcely fail to conclude that they were infected with cholera the day of the sale. There is, as we have seen, some...