Strasser v. Goldberg

Dodge, J. The first contention of appellant, to the effect that the court erred in refusing to change the answer to the second question of the special verdict from “No” to “Yes,”' and to thereupon render judgment in favor of the defendant, must be overruled. There is evidence on the part of the plaintiff in contradiction of any knowledge on her part of' her son’s conduct in holding himself out as the owner of the-horses; hence the specific question whether she knowingly permitted him to do so was one for the jury. In this connection appellant presses upon our attention certain testimony in the case to the effect that plaintiff herself represented the horses to belong to her son. This, however, is contradicted by her, and could not justify the court in deciding the fact. It, however, does support a further-contention made, to the effect that the special verdict is incomplete in that it contains no finding as to whether she herself held out, declared, or admitted the horses to belong toiler son John. The answer asserts not only the son’s conduct with her knowledge, but also her own express representation, and the defendant testifies to such declaration. She denies it. The issue therefore was one squarely framed by the-pleadings, and each side supported by evidence. Although-she may not have known of her son’s conduct, nevertheless she might be estopped by this conduct of her own, if under such circumstances that she ought reasonably to have anticipated that the defendant might rely and act thereon, and if' he did so. It is the duty of the trial court to frame the special, verdict, and to include therein every material issue-raised by the pleadings and evidence. A judgment cannot, be entered upon a verdict which fails to do this, if the omitted; [625] issue might have been so resolved as to prevent such judgment. That is clearly the case here, and tbe judgment in favor of the plaintiff should not have been entered upon this defective verdict. Orttel v. C., M. & St. P. R. Co. 89 Wis. 127, 61 N. W. 289; Hildman v. Phillips, 106 Wis. 611, 82 N. W. 566. The only escape from the conclusion above stated would be upon a conclusive showing that plaintiff neither knew nor ought reasonably to have anticipated that defendant might, in reliance on her statement, act to his injury, or that he did not so act; or perhaps upon an entire absence of evidence of either such facts. The latter — namely, the acting by'defendant — is perhaps, though ambiguously, found by the jury in answering question 3, but as to the former of these facts the verdict is silent, and therefore further defective, if there was any evidence upon it to support different conclusions. That there was such evidence we are persuaded. Defendant was notoriously in the business of buying and selling horses. He and a customer, according to some testimony, made a special trip to plaintiff’s farm, and asked if she had any horses to sell, to which she answered in the negative, whereupon he asked to whom the team in question belonged, and she replied that it belonged to her son John. From this, if they believed it, a jury might have drawn the inference that she ought reasonably to have anticipated that defendant asked the question for some material purpose, and was likely to act in reliance upon belief in John’s ownership. Two Rivers Mfg. Co. v. Day, 102 Wis. 328, 78 N. W. 440. In this immediate connection we may mention an assignment of error predicated upon the court’s refusal to permit defendant to testify that he did rely on this statement in taking his chattel mortgage. Such ruling was clearly erroneous. Defendant’s mental process was a fact as to which his direct evidence was admissible. Curran v. A. H. Stange Co. 98 Wis. 598, 607, 74 N. W. 377; Yerkes v. N. P. R. Co. 112 Wis. 184, 195, 88 N. W. 33. It was also a fact as to which [626] tbe burden of proof rested on him. Simonsen v. Stachlewicz, 82 Wis. 338, 52 N. W. 310; Mygatt v. Tarbell, 85 Wis. 457, 467, 55 N. W. 1031. It, of course, might also bo established or refuted by inference from the circumstances and conduct themselves (Vilas v. Mason, 25 Wis. 310, 324), but direct evidence could not thereby be rendered inadmissible. An instruction was requested by defendant, and refused, which, with much detail, called attention to the interest of the plaintiff and the duty of the jury to consider such interest in passing on the credibility,of her testimony; such instruction closing with the direction, “You are also to' subject all the testimony of all the witnesses to the same test.” The court gave a general instruction that the interest of all witnesses in the controversy was to be considered and whether such interest affected their testimony. While the instruction so requested states a correct rule of law, we nevertheless think its refusal proper under the circumstances. The plaintiff was not the only interested witness, and it might' well have erroneously impressed the jury to have discriminated her from the others. This, as has often been said, is a field fraught with danger. The court properly and wisely made no discrimination between the different witnesses, but informed the jury of their duty to consider the interest of each as bearing upon his or her credibility. The situation is distinguishable from that in Kavanaugh v. Wausau, ante, p. 611, 98 N. W. 551, where there was no other interested witness than the one mentioned in the requested instruction, and where the court failed to give any charge as to the effect of interest upon the credibility of witnesses.’ There was also- requested by the defendant, and refused, an1 entirely correct instruction as to the rule of “falsus in uno, falsus in omnibus.” Some of the plaintiff’s witnesses were so contradicted, either by their own statement or by other testimony, that the field was open for the application [627] of tbis rule. The court not only''refused the instruction requested, but failed to give any whatever upon the right of the jury to disregard the uncorroborated testimony of a witness whom they believed to have wilfully sworn falsely to ■any material matter. In this there was error. TJpon a trial presenting such a situation it is the duty of the trial court to inform the jury as to this rule. A breach of that duty may not be reversible error in the absence of specific request, but when, in such a case, request is made and refused, error is committed, which, in the present situation, appears to us -to have been prejudicial. The remaining assignment of error is upon the exclusion -of evidence as to the necessary expenses incurred by defendant in seizing and reclaiming the horses after they had been taken to Gates county and transferred by John Strasser to a ' purchaser there. The evidence was clearly admissible. If the mortgage is valid against the plaintiff, any necessary expenses incurred by. defendant may, by virtue of its terms, be realized out of the mortgaged property, and might well affect the extent of defendant’s interest therein, and therefore the amount of his recovery of damages in event of non-return of the replevied property now in plaintiff’s possession. We find no other assignments of error necessary of discussion. Eor the reasons already stated, a new trial is unavoidable. By.the Court. — Judgment reversed, and cause remanded for a new trial.