Kuehn v. Wilson , 13 Wis. 104 ( 1860 )

By the Court,

Cole, J.

Although the complaint in this case is not very artistically drawn, yet, as we understand it, the action is for an injury arising from an unskillful and improper castration of a colt, in consequence of which the animal died. It is true, there is some language in the complaint which would lead one to suppose that the pleader intended to found the action upon an express warranty that the colt “would get well and do well,” and not for a neglect or breach of an implied warranty or duty in performing the undertaking; but if the whole complaint is examined it will readily be seen that the action is for a breach of a common law duty resulting from the facts therein stated. There can be no doubt at all about the principle of law, that when skill and care are required in performing an undertaking, and a party professes to have skill in the business, and undertakes for hire to do it, he is bound to perform it in a skillful and proper manner. In such a case a party is understood to have engaged to use a degree of diligence and skill adequate to the due performance of his undertaking. Thus in this case, when the appellant undertook to castrate the colt, holding himself out to the world as a farrier competent for such business, he was then bound to apply a reasonable degree of skill to the service, and if through his ignorance or bad management in performing the operation, the colt died, he is answerable for the loss. These principles of law are too familiar to need the citation of authorities to establish them, and were not controverted at all upon the argument by the counsel for the appellant. But he insisted that as the complaint joined two distinct and inconsistent causes of action, one upon an express contract or warranty, the other for a breach of an implied warranty, no proof should have been admitted under such a complaint until the respondent had elected, for which cause of action he was intending to proceed. But as we think the complaint shows with sufficient certainty that the action ¡was for unskillfully castrating the colt, and as the whole record shows that the cause was tried upon 'that theory, tbis objection cannot be maintained. . If tbe complaint was not sufficiently certain, tbe remedy was by motion to tbe court to have it made, more certain; but it sets out substantially an action on tbe case under tbe old practice, and appears to have been tried in that light by tbe parties, and will now be so considered.

Tbe principal errors complained of are those which arise upon tbe instructions given tbe jury, and tbe refusal of tbe county court to give certain instructions asked for on tbe part of the appellant. Tbe general charge may be open to some criticism, for not stating with entire fullness and legal precision tbe principles of law applicable to an action on tbe case, and one upon an express warranty; but we do not think it could have misled tbe jury to tbe prejudice of tbe appellant. If tbis case contains tbe whole charge as given, we should say that tbe county court failed to discriminate between an express warranty that tbe colt would “ do well and get well,” and that legal obligation which tbe law will imply, to do tbe act with reasonable care and skill. Eor in telling tbe jury what constituted an express warranty, tbe court did not make it out to be anything more than such a warranty as tbe law would imply from tbe nature of the undertaking. Tbis is clear from tbe third special instruction asked for on tbe part of tbe appellant, and given by tbe court, which was in these words: “ That although tbe jury should find that tbe defendant did warrant tbe colt to do well and get well, yet if tbe jury believe from tbe evidence that tbe colt died from any other cause than improper castration, and aside from tbe defendant’s acts, then tbe warranty would not cover tbe loss, and tbe plaintiff cannot sustain tbe action on tbe warranty.”

Now an express warranty that tbe colt would get well, would render tbe appellant liable for tbe loss of tbe colt, whether be died from improper castration or from some other cause. Tbe common law liability would require him to perform tbe operation with reasonable skill and care, nothing further. An express warranty that tbe colt would get well, would be an absolute engagement to make good tbe loss, if tbe colt died without neglect from any one. Tbe warrantor would take tbe chances and hazards of weather, intervening disease, &c. As already observed, this action - was tried all the way through, as if the gravamen of the complaint was unskillful and improper castration. This issue appears to have been substantially left to the jury. And although the county court did not state accurately to the jury the nature and extent of an express warranty that the colt would do well and get well, still we do not feel that we should be authorized in reversing the judgment for that reason. The real issue, the real point in controversy, viz: unskillful castration, seems to have been fairly submitted to the jury. And for a like reason we think the judgment ought not to be reversed for the refusal of the court to give the second and fourth special instructions asked. These instructions were applicable to an express warranty. The respondent did not attempt to recover upon that ground. His evidence did not tend to establish such a case. The court, in telling the jury what the contract of express warranty was, made it out to be nothing more than an undertaking to answer for any loss sustained in consequence of want of reasonable care and skill. This was what the law would imply. We therefore think those instructions, under the circumstances, became immaterial.

It was for the jury to weigh the testimony of the parties, and determine which was entitled to the greater credit; and therefore the first instruction was properly refused.

Upon the whole evidence in the case, we are satisfied the jury must have found that the colt was unskillfully and improperly castrated, and we must, therefore,' affirm the judgment. Whether we should have arrived at the same result, it is unnecessary to state. We could not disturb the verdict unless it were strongly overborne by the testimony:

The judgment of the'county court is affirmed,