Witt v. Voigt

ViNJE, J. Tbe gist of plaintiff’s argument is tbat since tbe jury found a warranty and found a breach thereof it ia [570] immaterial what bad been the habits of the horse in the past as to biting and kicking; that since it was established that the horse did kick and bite while in plaintiff’s possession, proof of the fact that it did not do so while defendant had it would not relieve him of liability on his warranty that the horse would not kick and bite. This argument is sound assuming that it is admitted or established beyond controversy that the horse did, without any fault on plaintiff’s part, kick and bite while he had it. Animals, however, like human beings, have habits or propensities more or less fixed and enduring. Therefore, if it be established that an animal of mature age up to a certain time does not have a certain habit, such fact fends to cast doubt upon evidence that shortly thereafter it did have such habit. In fact the only way to rebut evidence that the horse kicked and bit upon certain occasions while in plaintiff’s possession, by others than eye-witnesses to those •occasions, would be by evidence of the horse’s previous good conduct in that respect. The probative force of such evidence would be for the jury. It might be of such character as to wholly discredit the evidence of those who testified they saw it bite and kick, or it might satisfy the jury that if the horse did bite and kick the fault lay with the plaintiff in the manner in which he handled it. In either case no recovery could be had. The defendant should have been permitted to put in this defense and the circuit court properly granted a new trial because of its exclusion. Kavanaugh v. Wausau, 120 Wis. 611, 98 N. W. 550. Some point is made that a proper offer of evidence was not tendered by the defendant. A careful perusal of the colloquy between court and counsel establishes the fact that defendant’s counsel said in substance that he had witnesses in court who were familiar with the horse before it was sold and who would testify that it did not kick, bite, or act viciously while defendant had it, whereupon the court informed him [571] that such evidence would not be received. This was a sufficient offer under the circumstances. This appeal was taken before the amendment of 1915 declaring orders for new trials upon appeals from the civil court nonappealable. By the Court. — Order affirmed.