Leopold v. Van Kirk

29 Wis. 548

Opinion

Dixoit, C. J.,

Tbe objection that there was a Variance .between tbe allegations of tbe complaint and tbe proof, growing out of wbat is understood by persons engaged in tbe trade as tbe difference between cured bams and fresb packed ones, is too technical to merit serious consideration. If there was such variance, tbe defendants were not misled by it, and it was just one of tbe kind which tbe statute declares shall not be deemed material.

There was no error in overruling tbe objection to tbe question propounded to tbe witness Oudabay, “ Assuming that tbe bams were for transportation to Lake Superior, and bad been properly stowed in tbe vessel, and then again assuming that they bad been properly cared for, ought they to have borne transportation to Lake Superior.” This objection is attempted to be sustained upon two grounds: first, that tbe assumption that tbe bams “bad been properly cared for,” was unfounded, no evidence having been given in support of it; and second, that it was an improper question to put to an expert, tbe jury being as competent to judge of tbe matter as tbe witness was. Of tbe first ground of objection we have only to observe, that it is entirely unfounded in fact. There was evidence before tbe court and jury quite sufficient to justify tbe assumption for tbe purpose of obtaining tbe opinion of tbe witness. Tbe testimony of tbe captain and mate of tbe vessel, quoted by counsel in their brief, was enough. Tbe mate said it “ was dry and cold.” and be would “ almost say, fresb meat would not spoil there ”; be could not tell bow far from tbe engine or boilers tbe hams were stowed, but tbe Houghton and Hancock freight and tbe bulkhead were between tbe bams and tbe engine and boiler. He also said be “ could not say wbat was stowed around or above tbe bams; tbe bold was full; as near as I can remember, pork, beef, groceries and provisions in packages were on top of tbe tierces or near them.” Tbe captain said, “tbe bams were stowed away under tbe mate’s direction. - All tbe goods that were consigned to ports above Houghton were stowed in tbe forward part of the hatch; the place of storage was cold; no danger of anything spoiling there; and was perfectly dry. With the hams were stowed provisions, groceries and fruit.” Such is the testimony quoted by counsel themselves to establish this ground of objection. It is needless to say, it does not do so, but does establish the very opposite. The hams were shipped and the vessel made her trip from Milwaukee northward to Lake Superior during the last days of the month of November, when everybody knows that the weather is cold, almost wintry, upon the great lakes. But counsel say the captain did not know, nor did the mate, the degree of heat or cold in the hold of the steamer where the hams were stowed. Was it necessary that a thermometer should have been kept, and the exact degrees of cold at that place marked by it, in Order to make the testimony of those witnesses competent and admissible, or to entitle it to be considered by the court and jury ? Counsel seem to suppose that it was; but this court, in Curtis v. The Chicago and Northwestern Railway Co., 18 Wis., 312, held that the state of the weather, as to heat or cold, was a matter of such common experience, that any witness of ordinary intelligence and having knowledge oh the subject, was competent to give his opinion as to whether the weather was so cold on a day remembered by the witness that vegetables (potatoes) would be likely to freeze while in the cars of a railway company, or when deposited in its warehouse. This court wholly disagrees with the learned counsel as to the sufficiency of this ground of objection.

The other ground of the objection in effect is, that the subject matter of the inquiry did not so far partake of the nature of a science, requiring a course of previous habit or study in order to attain a knowledge of it, that the opinion of an adept was competent and admissible. The skill and special experience of the witness were well established; but it is said that the cause of the fermentation and souring of the hams, under the circumstances, was no question of science or skill whatever. Upon this point we disagree also with the counsel who urge it. "We think it follows from the views expressed by this court when this cause was before it on the first appeal (Leopold v. Van Kirk, 27 Wis., 152), that it was such a question, and that it was competent for the witness to -give his opinion.

And the same answer is applicable to the objections to the two other questions put to the same witness ; “ Whether, in your judgment as an expert, the bloated appearance of the hams you inspected was produced or caused by the animal heat not having been out of them before they were packed; ” and, on the re-direct examination: “ Mr. Finch says, ‘ if hams were the properly packed; ’ I want to ask you if you would not have attributed the damage of these hams to the fact that they were not in a proper state for packing, in the case he puts ? ” It is true, the witness did not see the hams until some months after they were packed, and after they had been brought back from Lake Superior to Milwaukee. It is also true that the witness had expressed his views very doubtfully upon some questions which had been put to him, and as to others he had said he could give no positive opinion. All these circumstances were, however, known to the jury who heard him testify, and were doubtless considered by them in determining the degree of credit which should be given to his testimony. The witness did not, as counsel argue, show himself totally incompetent as an expert; and of the mode of his examination generally, it may be said that there was nothing exceptionable in it. In the examination of such witnesses, considerable latitude of inquiry and interrogation must necessarily be indulged, and counsel are not to be limited by any narrow or stringent rules either in obtaining the opinion of the witness upon all the facts disclosed, or in ascertaining his skill and competency, or the want of them, to give such opinion.

The next four errors assigned relate to the instructions of the court to the jury, and the fifth to a refusal to instruct as requested by the defendants. The charge of the court as a whole :will be'found very nearly to harmonize with tbe rules laid down by this court for tbe government of tbe case wben tbe cause was bere on tbe former appeal. Tbe jury were made distinctly to understand that, in order to sustain tbe action, they must be satisfied that tbe bad and unsound condition of tbe bams wben .they reached'Lake Superior, must have proceeded from some defect existing in them, or in tbe manner of their preparation and packing, wben they were sold and delivered by tbe defendants, and that it must not have arisen from any cause originating after such sale and delivery. Tbe failure to do this was tbe principal error in tbe former charge, and for which tbe judgment was reversed. It was tbe leading and important point to be observed upon tbe trial of tbe cause. Tbe first objection to tbe present charge is, that tbe judge erred in telling tbe jury that an express contract and warranty was tbe same as an implied warranty; and counsel labor zealously to demonstrate tbe falsity of tbe position, and do so very satisfactorily. But tbe difficulty with tbe objection is, that it is unfounded in fact. Tbe judge did not so instruct tbe jury. All tbe judge meant was, that tbe express warranty which tbe evidence in tbe case tended to prove, was tbe same as tbe law would have implied upon a sale of tbe same articles under tbe same circumstances, if no such express warranty bad been made. In this tbe judge was fully justified by tbe remarks of this court in tbe former opinion; and we think there could have been no misunderstanding on tbe part of tbe jury. If it was customary, or if it was expected, as it seems it was, that freshly packed bams would carry at that season of the year, by boat or vessel from Milwaukee to Lake Superior, receiving no injury from tbe transit, and arrive there in a sound and wholesome state, provided they were properly prepared and packed, and if tbe plaintiffs purchased tbe bams in question with a view to such transportation, and that fact was communicated by them to tbe defendant at tbe time of purchase, and tbe defendants sold and delivered the bams for that purpose, then tbe express warranty, testified to by tbe plaintiffs Aaron T Leopold and bis brother Samuel F., was in substance and effect tbe same as tbat wbicb tbe law would have implied without it.. With this understanding of tbat part of the charge, it was clearly unobjectionable, and sanctioned, as we have said, by tbe former decision of this court.

Tbe second exception is to a portion of tbe charge wbicb is more justly liable to criticism, and wbicb, under some circumstances might have constituted error for wbicb tbe judgment should be reversed. It is to tbat part where tbe court adopted tbe fourth, fifth' and sixth points prepared by counsel for tbe defendants,' but modified tbe fourth and fifth, by striking out tbe words “defect” and “event” in tbe former, and inserting in their places, respectively, tbe words “unsoundness” and “ neglect,” and also in tbe latter by striking out tbe words “defect thereto ” and “ or event,” and substituting for them tbe words “ unsoundness therein ” and “ or neglect of tbe plaintiffs.” Tbe two first changes were immaterial, being a matter of mere taste in tbe choice of words having tbe same meaning. But tbe other changes were more significant, as they indicated an opinion on tbe part of tbe court, tbat for subsequent unsoundness arising from some subsequent cause not conneeted with or attributable to negligence or the negligence of the plaintiffs, tbe defendants might be held responsible. This was inconsistent with other parts of tbe charge,- and was clearly not tbe law. It was immaterial from what cause originating after tbe sale, unless it was tbe mere act of carrying in a careful and proper manner, against wbicb tbe jury may have found tbe defendants warranted, tbe bams subsequently became unsound, so tbat such unsoundness was not traceable or produced by defects existing at tbe time of sale, either in tbe bams themselves or in tbe mode in wbicb they were prepared or packed. In such case tbe defendants would not be liable. In such case it is immaterial bow, or from what subsequent cause or event, tbe unsoundness arises, whether from mere accident, tbe op eration of the elements, or from the negligence of the purchaser or of a stranger; no responsibility therefor attaches to the seller. In this view, these modifications of the instructions seem to have been error, and, but for the other instructions clearly and correctly given upon the same point, and if it were not, also, for the fact that there was no evidence of subsequent accidental damage or other injury not arising from negligence, the error might have been fatal. But, as the case was, we think the defendants could not have been prejudiced, and therefore the error must be disregarded.

The exception to the remarks of the court to the jury, that they could not “ lose sight of the fact that the packages were put on board November 14, of the temperature of the weather that ordinarily prevails at that season of the year, and that the temperature would be lower on shipboard in the open lake than on the shore,” seems to have been quite uncalled for. The first was a fact undisputed in the case, and the truth of the other is demonstrated by common experience. If it be error for the court to allude to such well known circumstances in its -instructions to a jury, it is something which this court has yet to learn.

And so of the exception to the instruction that “ notwithstanding evidence of the defendants’ usual manner of packing hams in the period embraced as to the hams in controversy, yet if the jury find from the evidence that the hams in controversy escaped the observance — whether by accident or otherwise — of such usual mode and manner, the defendants were liable for any non-observance.” Counsel say there was no evidence that the hams in controversy escaped the observance, either by accident or otherwise. By this we suppose must be understood no positive or direct evidence of the fact. But proof of that kind was unnecessary. . It was enough that the jury should find from proof of other facts and circumstances that the fact was so. It could be found from circumstantial evidence, which was all that plaintiffs were able to give.

Tbe exception to tbe request to charge which was refused, has been disposed of in our remarks first made on the question of variance. That request was founded upon the supposed variance between the contract proved and that set out in the complaint

The last error assigned is, that the verdict was against evidence. We need not dwell upon this, as there clearly was evidence by which the verdict was supported.

On examination of the whole case, therefore, we find no error for which the judgment should be reversed ; and it must accordingly be affirmed.

By the Court. — Judgment affirmed.