Loomis v. Besse

Barnes, J. The faux fas committed by defendant was the result of a tragedy of errors for which plaintiff is in no sense responsible, and against which his colt in all probability protested as vigorously as it knew how. The latter would no doubt have invoked the application of the laissez fairs doctrine had it been able to make itself understood. Its failure to do so has changed the course of its sphere of usefulness, and instead of leading a life of comparative ease it is hopelessly condemned to lead one of toil and burden. The appellant seems to have a well grounded suspicion that blundering was contagious wherever this colt was involved and that the trial court became badly infected with the contagion. Although the trial was a short one, thirty-four errors are assigned and argued. We shall not attempt to discuss these errors in detail. They may be classified under the following heads: [650] (1) Exclusion of parol evidence tending to sbow that tbe colt was entitled to registry; (2) excluding tbe evidence of a witness on tbe question of damages, wbo, it is claimed, bad shown bimself competent to testify; (3) refusing to permit admittedly qualified witnesses to answer certain questions propounded to tbem and bearing on tbe question of damages; (4) permitting alleged incompetent witnesses to testify on tbe subject of damages; (5) error in charging tbe jury; (6) permitting the defendant to recover costs in excess of tbe damages recovered; (7) error in permitting tbe entry of two judgments in tbe action. 1. As we understand tbe record, tbe court refused to allow plaintiff to testify that bis colt was entitled to registry, because.such testimony was not tbe best evidence. There was no claim that tbe colt was registered in fact. If it was entitled to registry it was because tbe record of its pedigree was preserved in books kept by some registry association, society, or company recognized by tbe department of agriculture at Washington, D. C. Sec. 1494 — 33, Stats. (Laws of 1901, cb. 340). A certificate of registry would be tbe best evidence that tbe colt was entitled to registry. In tbe absence of such a certificate, if plaintiff desired to prove that tbe colt was so entitled, such proof should be made by offering tbe records on which a certificate of registry would be based. 2. Tbe court refused to permit one Randall of Spring Valley, Minnesota, to testify to tbe value of tbe colt before and after tbe operation because be admitted that be was not familiar with tbe value of horses at Barronett and in tbe vicinity thereof. Tbe ruling was technically correct. 3. Tbe court very properly held that tbe damages should be proved by testimony tending to show tbe value of tbe colt immediately before and after tbe operation. There was no error in excluding testimony that bad only an indirect or remote bearing, on this question. 4. Complaint is made that some of tbe witnesses wbo tes651 tilled for the defendant, and to the effect that the value of the colt was not lessened by the operation, were not shown to be competent. We think all of them were qualified to testify; some better than others, to be sure, but this difference only went to the weight of their evidence and not to its competency. 5. The court charged the jury that they should assess as damages the difference between the reasonable market value of the colt before and after the operation. It is argued that it was error to limit the recovery to “reasonable” market value. The objection is captious. Had the court used the word “unreasonable” instead, plaintiff would have just cause for complaint. 6. It is urged that it was error to permit the defendant Besse to recover taxable costs in excess of the six cents damages awarded, because there was a trespass committed on the real estate of the plaintiff. The action was not one for injury to real estate, and it does not appear that Besse was not rightfully on the land held by the plaintiff under lease. There is nothing to show that the defendant Loomis did not have a right to send Besse on the premises to castrate his colt. The trespass committed was on the plaintiff’s colt, not on his land. 1. It is argued that it was error to permit the entry of two judgments and the taxation of two bills of costs against the plaintiff, and this blunder presents the only serious question in the case. The defendants appeared by separate attorneys and answered separately, and their pleadings raised separate issues, if indeed any cause of action was stated as to the defendant Loomis. The defendant Besse might well be held liable and his codefendant be exonerated; so there was no error in allowing each of the defendants to tax statutory costs against the plaintiff. The action comes within subd. 5 of sec. 2918, Stats. (1898), and, the recovery being less than $50, plaintiff was not entitled to costs, but the defendant Besse was, under sec. 2920, Stats. (1898). Loomis as a sue652 cessful party defendant was also entitled to costs under that section. Mace v. Reed, 89 Wis. 440, 62 N. W. 186; Wausau B. Co. v. Plumer, 49 Wis. 112, 4 N. W. 1072; Harrigan v. Gilchrist, 121 Wis. 127, 448, 99 N. W. 909; Stephenson v. Doolittle, 123 Wis. 36, 43, 100 N. W. 1041. The entry of two judgments in the case, however, was error. This court has frequently held that under secs. 2882 and 2883, Stats. (1898), but one final judgment can be entered in an action. Sellers v. Union L. Co. 36 Wis. 398, 401; Trustees, etc. v. Delaware Ins. Go. 93 Wis. 57, 68, 66 N. W. 1140; Adkins v. Loucke, 107 Wis. 587, 593, 83 N. W. 934. Other cases might be cited to the same proposition. The Besse judgment was entered April 29, 1911, and the Loomis judgment June 17, 1911. Besse had a right to enter judgment in the action when he did, although his judgment should have made provision for adjudicating the rights of Loomis if the latter so desired. Loomis, however," was not obliged to enter judgment, unless he wanted to do so. Having deferred doing so until one judgment had been entered, he should have moved to amend that judgment instead of entering a second one. The entry of a judgment by Besse which ignored the rights of his codefendant was at most a mere irregularity which did not constitute reversible error. The status of the Loomis judgment will be considered in discussing the appeal taken therefrom. By the Oourt. — The judgment of the circuit court is affirmed. ViNje, T., took no part'.