#### Kennedy, Respondent, vs. Plank and another, Appellants.

*December 12, 1903*

January *12, 1904.*

*.Appeal ancl error: Bill of exceptions: Mistalce in selling drugs: Damages: Evidence: New trial: Newly discovered evidence.*

*1.*An objection that a verdict.is perverse and contrary to the evidence cannot be considered in tbe absence of a certificate tbat tbe bill of exceptions contains all tbe evidence material to tbe case.

*1982. In an action to recover for injury to plaintiff's horses claimed to have been caused by feeding them copperas, sold and delivered to him by defendants by mistake for Glauber’s salt, there was evidence that the horses were in good condition up to the time they were fed the copperas; that all of the horses to which the copperas was fed manifested the same systemic derangement within a week or ten days after they were fed it; that a *:post mortem**examination of those that died showed conditions such as copperas poisoning produces in horses, and that no other cause was shown to which such conditions were attributable. *Held,*sufficient to show that copperas fed to horses in such quantities as plaintiff gave was injurious to health.

3. Orders refusing a new trial in jury cases cannot be reversed on appeal upon the ground that the verdict is contrary to the weight of the evidence, unléss it clearly appears that there is no 'credible evidence to support the verdict.

4. Evidence that plaintiff procured copperas for a neighbor under the same circumstances as he procured it for himself; that such neighbor fed it to his horses; that his horses manifested the same symptoms as those of plaintiff’s within the same time, and that a *post mortem*examination disclosed physical ■ conditions similar to those found in plaintiff’s horses and indicated the cause of death and ailment of the animal, is *held*to have been admissible as tending to corroborate that the sickness of plaintiff’s horses was the result of defendants’ negligence.

5. In such case, refusal to grant a new trial on the ground of newly discovered evidence, based upon affidavits tending to show that after the death of plaintiff’s horses he and the veterinary surgeon who treated them made statements as to the cause of their death at variance with their testimony on the trial, is *held*not to have been erroneous.

Appeal from a judgment and order of the circuit court for Waushara county; Chas. hi. Webb, Circuit Judge.

*Affirmed.*

Defendants conducted a general store, including a drug-department, in the village of Hancock. Plaintiff is a farmer residing near- by. He alleges that on May 22, 1899, while at the store, he called for two packages of Glauber’s salt, of four pounds each, and that defendants, through one of their clerks, sold and put up for him two packages of copperas instead of the Glauber’s salt; that he caused the copperas to be *199administered to Ms horses by Ms Mred m§m in the belief that it was Glauber’s salt; that in consequence thereof the horses were made ill, required medical attendance, and were rendered unfit for farm uses, and therefore he was subjected to the expense of hiring horses to do his work. One of the horses died in the month of August, 1899. It appears that plaintiff obtained the two packages, one for himself, and one for his neighbor, a Mr. T'ibbitts; and there is evidence tending to show that one of Mr. Tibbitts’s horses became sick and showed symptoms of a like nature about the same length of time after having been fed the copperas as plaintiff’s horses. Defendants deny the negligence charged, and claim that Glauber’s salt was delivered as requested by plaintiff, but that he, through his negligence, exchanged it for two packages of copperas which were on the counter of defendants’ store at the time of the transaction.

The evidence included in the bill of exceptions is in sharp conflict upon the material questions litigated upon the trial. Under proper instruction, the court submitted all the issues, and the jury found in plaintiff’s favor in the sum of $351.16. Judgment for this amount was awarded plaintiff, and from that judgment this appeal is taken. Defendants also appeal from an .order denying their motion for a new trial.

Eor the appellants there was a brief by 'McFarland, *Hanna & Murat*and *Corrigan &*Johnson, and oral argument by *C. B. McFarland*and *W. D. Corrigan.*

*D. D. Conway,*for respondent.

Siebecker, J.

Eespondent recovered damages upon the verdict of the jury. He alleged the injuries resulted from appellants’ negligence in delivering copperas to him instead of Glauber’s salt, as he requested, for use as a medicine for his horses. Appellants attack the judgment upon the ground that the verdict is perverse and contrary to the evidence. An examination of the record discloses that it is not certified that *200the bill of exceptions contains all tbe evidence material to tbe issues in tbe case. Upon tbis state of tbe record, tbis court cannot review tbis assignment of error. *Lain v. Shepard*son, 23 Wis. 224; *Conatty v. Milwaukee E. R. & L. Co.*100 Wis. 467, 76 N. W. 482.

It is, however, apparent from an inspection of tbe evidence before us that tbe jury were warranted in finding as they did. Tbe main questions submitted to tbe jury were: (1) Did appellants, at tbe time alleged, sell and deliver copperas to respondent in place of Glauber's salt? and (2) Did respondent’s borses become sick as a result of feeding tbem tbe material procured from appellants ?

Respondent asserts and appellants deny that respondent-received copperas when be called for Glauber’s salt. Tbe evidence submitted by tbe parties upon tbis question was in conflict, and tbe court submitted tbe issue to tbe jury upon a general verdict. Tbe proof tending to support tbe position of either party was of such nature and weight as to require tbe trial court to submit it to a jury for determination.

It is, however, urged that there is no evidence tending to show that copperas fed to horses in such quantities as respondent fed it would be injurious to their health. We find no foundation for tbis contention in the evidence. There is considerable evidence tending to show that tbe borses were in a good state of health up to tbe time they were fed tbe cop-peras ; that they manifested tbe same symptoms of weakness, debility, and a systemic derangement within a week or ten days after they were fed it, and their symptoms showed they were affected from a like cause. No other cause was shown to which tbis condition was attributable, and tbe *post mortem*examination of respondent’s, as well as Mr. Tibbitts’s borses, sustained tbe claim that tbe conditions were such as copperas poisoning produces in borses.

In tbe light of tbis evidence, tbe issue was properly submitted to tbe jury, though there was strong and persuasive *201evidence in conflict with the proof sustaining the verdict. This court cannot reverse orders refusing a new trial in jury -eases upon the ground that the verdict is contrary to the weight of the evidence unless it clearly appears that there is no credible evidence supporting the verdict approved by the court. *Jones v.*Evans, 28 Wis. 168; *Ray v. Northrup, 55*Wis. 396, 13 N. W. 239; *Smith v.*Lander, 48 Wis. 587, 4 N. W. 767; *Becker v. Holm,*89 Wis. 86, 61 N. W. 307.

It is argued that the court erred in receiving the testimony •of the veterinarian, E. S. Lawrence, and of Mr. Tibbitts, relating to the sickness and *post mortem*examination of Tib-bitts’s horse. The testimony hardly admits of dispute that ’the horse was fed copperas, procured from appellants by re■spondent at the time he purchased for himself; that it was fed to the horse by Mr. Tibbitts; that it became sick, manifesting symptoms like those of respondent’s horses, within the •■same period of time; and that upon a *post mortem*examination the veterinarian observed physical conditions corresponding significantly to the conditions observed in the horses of respondent, and indicating the cause of ailment and death of the animal. This evidence had a direct bearing upon the inquiry as to what effect copperas has upon horses when fed in the quantities shown in this case, and tended to corroborate respondent’s claim that the sickness of his horses was the result of appellants’ negligence. The testimony was properly admitted.

We are now to determine the question presented upon the .appeal from the order overruling appellants’ motion for a mew trial, and to vacate the judgment upon the ground of mewly discovered evidence. The issues litigated have been sufficiently stated. The affidavits upon which the motion is .based show that the alleged newly discovered evidence consists of statements and admissions of respondent, made during the fall of 1899, to the effect that his horses were poisoned by sal soda obtained from appellants in place of Glauber’s *202salt, and that lie did not know tlie canse of his horses’ sickness and death. True, the evidence does not agree in some respects with respondent’s statements upon the trial as to his-knowledge of what he secured from appellants in place of the Glauber’s salt. It appeared he had no positive knowledge that he procured copperas until he learned it through Prof. Daniels, but he always spoke of the poison as having been sold him by appellants in place of Glauber’s salt. This rendered the alleged newly discovered evidence of little weight in the determination of the issuable facts. These admissions that he did not understand the cause of the sickness is in its; nature weak and unsatisfactory, in view of the positive statements made at about the same time that the horses were sick from what appellants had given him in place of the Glauber’s salt. The evidence that Dr. Lawrence made statements on this subject to various persons before the trial which was in conflict with his testimony is of the same nature, and can add but little, if any, weight to sustain the motion. We are of opinion the trial court was fully warranted in holding that, if this evidence were produced and submitted to a jury with the other evidence, it ought not to, nor would it probably, lead to a verdict different from the one rendered. *Goldsworthy v. Linden,*75 Wis. 25, 43 N. W. 656; *Ryan v. Rockford Ins. Co. 85*Wis. 573, 55 N. W. 1025; *Grace v. Mc-Arthur,*76 Wis. 641, 45 N. W. 518.

We must hold that the action of the trial court in awarding judgment and denying the motion for a new trial is sustained by the record.

*By the Court.*— The judgment and the order of the circuit court are affirmed.