DocketNumber： Appeal 1476
Judges： Porter, Henderson, Trexler, Keller, Linn, Oawthrop, Cunningham
Filed Date： 4/11/1928
Status： Precedential
Modified Date： 10/19/2024
Argued April 11, 1928. Plaintiff has a verdict for damages to compensate him for the loss of two cows. He intended to drench them with epsom salts but, instead, gave them saltpeter, which caused their death. His evidence was to *Page 289 the effect that he purchased epsom salts at defendant's drug store, but that defendant's wife, who was then in charge of the store and was authorized to make the sale, gave him saltpeter instead of epsom salts; that she marked the packages "epsom salts" and that he did not discover the error until after the cattle died.
His statement of claim alleged that his purchase was made "in the late fall or early winter of 1925." He dosed his cows, one in January, 1926, and the other in February, 1926. There is no averment that the sale of drugs by defendant in his store was left in the hands of an incompetent person with knowledge of that fact.
Only one complaint is before us: The refusal to sustain defendant's objection to the evidence of a witness called by plaintiff in rebuttal; defendant excepted and also moved to strike out the evidence. We must sustain the assignment of error.
During the cross-examination of defendant he was asked whether "along about the month of March, 1925" his wife had sold "some saltpeter for salts to Wilson Moreland." He answered "No."
After defendant put in his evidence, plaintiff called Mr. Moreland who stated (in response to plaintiff's question) that in March, 1926, he purchased epsom salts from defendant's wife and received saltpeter instead.
It is obvious that if the jury should find the collateral fact that the alleged mistake was made in March, 1926, as Mr. Moreland testified, it would not be relevant to the issue raised in the pleadings whether plaintiff made the purchase as stated by him in 1925: Veit v. Class et al.,
The judgment is reversed and a new trial awarded.