Broquet v. Tripp

Opinion by Holt, C.: 1' £e|>f action competén®es’ Plaintiff in error, defendant below, makes several assignments of error. The first one that we wish to consider is, that the court erred in admitting testimony, over the objection of the defendant, tending to show the condition of the entire fiock of sheep kept by Ramage, including the two hundred purchased by Ovelman in February, 1883. He claims that unless the sheep of the plaintiff were distinguished from those of Ovelman, there could be no testimony introduced showing that they were diseased. "We think that this objection is not well taken. The testimony of the witnesses was that they were all of the same quality of sheep purchased from Broquet, and came from the same flock owned by him, and that it was impossible to tell which sheep belonged to either purchaser, except the two hundred that were marked by Ramage; If the claim of the defendant is correct, neither Ovelman nor the plaintiff could have recovered any damages arising from the breach of the defendant's warranty of the sheep bought in February. There was no confusion or com [703] mingling of the sheep by the plaintiff or his agent for the purpose of concealing the facts from or manufacturing evidence against Broquet, or in any manner defrauding him. The flocks were put together simply for the reason that they could be more easily cared for in one flock than in separate flocks. The court moreover, in its instructions to the jury, cautioned them against allowing to plaintiff in this case damages which Ovehnan may have sustained because his sheep were diseased, in language so strong that the defendant, at least, can have no grounds for complaint. -proper damages, Defendant further complains that there was testimony introduced, over his objection, tending to show that the lambs were diseased; and claims that the damage to the lambs was not a proper item to be considered under the warranty of the defendant. The sheep purchased by the plaintiff were almost entirely ewes, and were bought for the purpose of breeding. If the lambs had died when they were dropped, by reason of the disease of the ewes, that would certainly be ao item ox damages; or if the ewes at the time of ^ . parturition had died by reason of weakness occasioned by the disease, that also would be a matter to be investigated and allowed in the claim for damages. If the lambs naturally and necessarily became diseased by running with the flock of diseased sheep, as it appears from the evidence in this case they did, we believe that fact could properly be considered in ascertaining the amount of damages to be recovered. Another assignment of error is, that the court permitted one Hill to testify as an expert. There was no substantial error in the admission of his evidence. He said that the sheep were diseased, and described how they appeared, a description that any person who had examined the sheep, whether he was an expert or had any skill at all, could have easily seen and described. The testimony he gave, claimed by defendant to be expert testimony, was that the sheep were diseased. The testimony of other witnesses, showing that they were diseased, was overwhelming, and we presume that a witness, not an ex [704] pert, could say that an animal was diseased if he did not attempt to describe the nature and effects of such disease. „ ofj 'dfioSn of comfc. Defendant further claims that a witness which he sought to introduce, Witt by name, should have been allowed to testify as an expert. But his examination shows that he was unskilled, so far at least as the use of the English language is concerned. He testified that the disease called “scab” was caused by an insect, which was not visible to the naked eye, but which he had examined often through the telescope; and then he corrected himself by saying that he had looked at it through the telephone. Other parts of his testimony indicate about the same degree of general intelligence. The ability or disability of a witness to testify under the legal requirements for the admission of opinion evidence a ma^ei, 0ften most conveniently and satisfactorily determined by a personal examination of the witness, and we presume that the court, having this witness before it, and perceiving his mental caliber, was justified in excluding his testimony. The questions propounded to him were allowed to be answered fully by other witnesses produced by the defendant, whom the court thought were qualified as experts. Therefore the defendant could not have been materially prejudiced by the court’s refusal to allow him to testify. „ „ ... „ judgment ñlr íesidue. The defendant complains further, that the court erred in refusing number sixteen of the instructions asked. The record does not show that there was any exception to the refusal to give such instruction. The defendant still further complains that the court, as a condition for overruling his motion for a new trial, remitted three hundred and fifty dollars of the verdict. We think it had ample authority to do so. If the plaintiff consented thereto, the defendant ought not to complain, as the reduction was in his favor. It seems to be well settled that, in actions for damages of this kind, an excess in the verdict, above what the evidence might justify or satisfactorily establish, may, with the consent of the party in whose favor the verdict was given, be remitted, and judgment entered for the residue. The [705] exercise of such power is sanctioned on the theory that the excess arises either from error of law, misapprehension of the facts, or error in computation by the jury, and that such error does not permeate the entire verdict, and therefore it is competent to correct it. When the assent of the party is obtained, whom alone the correction would prejudice, the other party has nothing of which to complain, such order of the court being in his favor. (Pendleton St. Rld. Co. v. Raham, 22 Ohio St. 446; Brockman v. Berryhill, 16 Iowa, 183; Dawson v. Wisner, 11 id. 6; Craig v. Cook, 23 Minn. 232; Corcoran v. Harran, 55 Wis. 121.) It is recommended that the judgment of the court below be affirmed. By the Court: It is so ordered. . All the Justices concurring.