Nolan v. Kroening, 130 Wis. 79.

the law will not reform a deed so as to bar her dower in land which she has never conveyed nor agreed to convey, and for which she has received no part of the consideration. There are at least two difficulties with this proposition: First, there is neither pleading nor proof that Mrs. Chloupek received no part of the consideration, and the only evidence bearing on the subject is the recital in the deed, which acknowledges that the parties of the first part (Mr. and Mrs. Chloupek) have received the sum of $175, in consideration of which they execute the deed; second, it appears by the stipulation filed that Mr. Chloupek, before his death and after judgment, deeded the fee in the land in question to the defendant Anna. By accepting a deed of the fee Anna's inchoate estate in dower was unquestionably merged in the fee. The greater and the lesser estate met in the same person with no intermediate estate between, and the lesser estate ceased to exist. Youmans v. Wagener, 30 S. C. 302, 3 L. R. A. 447, 9 S. E. 106. The defendant now has only the fee, which is subject to the plaintiff's right of reformation of his deed.

By the Court.-Judgment affirmed.

NOLAN, Administrator, Appellant, vs. KROENING, Respond

ent.

November 8-December 4, 1906.

Appeal and error: Assignments of error, when not considered: Conclusiveness of verdict: Animals: Personal injuries: Evidence: Instructions to jury: New trial: Misconduct of jurors.

1. Error assigned respecting the reception and rejection of evidence, not claimed to relate to findings of the jury questioned, not considered.

2. If there is any credible evidence to support a verdict it cannot be disturbed on appeal.

Nolan v. Kroening, 130 Wis. 79.

3. In determining whether there is such credible evidence or not the record should be viewed in the most favorable light it will reasonably bear in support of the verdict, and the conclusion of the trial judge thereon will not be disturbed unless clearly wrong. 4. In such case it is not sufficient that there is room for the trial judge to have reached, or that the supreme court might have reached, a different conclusion.

5. In an action for personal injuries to a traveler on a highway in consequence of his horse becoming unmanageable by being frightened by a dog, under the evidence, stated in the opinion, it was held that a verdict for defendant could not be disturbed in view of the fact that the trial judge, both in submitting the cause to the jury and in deciding a motion to set aside the verdict, deliberately decided it was within reasonable probability that the horse was not frightened or made unmanageable by defendant's dog.

6. In such case instructions to the jury, stated in the opinion, are held to be free from error.

7. Findings made on a motion for a new trial, that jurors were not guilty of misconduct, must stand unless they appear to be against the clear preponderance of the evidence.

APPEAL from a judgment of the circuit court for Manitowoc county: MICHAEL KIRWAN, Circuit Judge. Affirmed. Action to recover upon two causes of action as hereafter indicated.

The first claim of the plaintiff was that on September 16, 1902, while G. O. Krueger, the deceased, was traveling south on Sixth street in the village of Reedsville, Manitowoc county, Wisconsin, riding in an open buggy accompanied by his wife, he driving a single quiet horse hitched to such buggy, a dog owned by the defendant, of bad disposition and accustomed to pursue, bite, and worry horses driven upon highways, savagely attacked such horse, worried, pursued, and bit it, causing the horse to become frightened and unmanageable and to jump violently to one side and run along the road, the dog following and continuing its attack on the horse, for a distance of some forty rods, whereby said Krueger was violently thrown from the buggy and one of his feet was caught in the foot-rest holding it fast so that he was dragged for the

Nolan v. Kroening, 130 Wis. 79.

distance aforesaid, injuring him so that he died; that he was an able-bodied man sixty-seven years of age, having a wife and family, and was capable of earning $600 per year. Compensation for damages to the surviving relatives in the sum of $5,000 was demanded.

The second cause of action was for compensation for damages to the deceased and was based on facts as to the injury to him stated in the first cause of action.

All allegations of the complaint were put in issue by the

answer.

Before the commencement of the trial the jury were carefully cautioned against talking about the case with outsiders. or with one another pending the submission of the cause to them for a verdict and, generally, as regards their duty as jurors in respect to keeping free from all impressions other than those produced by the evidence and the law given in

court.

The evidence was undisputed that on the day alleged in the complaint, while Mr. Krueger was driving his horse on the highway, as alleged in the complaint, the defendant approached him from behind, riding in a cart drawn by a single horse and accompanied by a boy; that his dog was following him; that he passed the deceased and subsequently that the latter passed him, the deceased's horse being in an unmanageable condition, and that he was thrown from his buggy and came to his death substantially as alleged in the complaint. Whether the defendant's dog was instrumental in producing such result and whether Mrs. Krueger negligently contributed thereto by taking hold of one of the lines and pulling the horse to one side, were controverted matters. The evidence showed that Mr. Krueger's horse became unmanageable about the time Mr. Kroening passed Krueger and that the latter's horse jumped to the right and into a ditch at a small culvert, at which time he was thrown from his buggy and thereafter dragged as stated in the complaint. The court VOL. 130-6

Nolan v. Kroening, 130 Wis. 79.

submitted the cause to the jury for special verdict with the following result (matters submitted and not answered, or rendered unnecessary on account of questions that were answered, are omitted):

"1. On September 16, 1902, was the defendant, Reinhardt Kroening, the owner and keeper of the dog mentioned in the complaint in this action? A. (by the court by consent of counsel). Defendant was the keeper of said dog.

"2. At the time and place of the injury in question, did said dog attack, bite, and frighten, in the public highway, the horse which plaintiff's intestate, Godfried O. Krueger, was then and there driving? A. (a) The dog did not attack or frighten the horse. (b) The dog did not bite the horse."

"6. At the time in question, was the horse which said Krueger was driving so untrained, or so vicious or unmanageable in disposition, that it was not a reasonably safe animal to be driven to a buggy by said Krueger on the public highway? A. No, not safe.

"7. Did any want of ordinary care on the part of said Krueger or his wife contribute to produce his death? (64 Wis. 323.) A. Yes."

After verdict there was a motion to set the same aside because of misconduct on the part of the jury and there were other motions, rulings, and exceptions thereto preserving for review the questions discussed in the opinion. Judgment was rendered on the verdict in favor of the defendant and the plaintiff appealed.

For the appellant there was a brief by Sedgwick, Sedgwick & Schmidt and Healy & Joyce, and oral argument by G. G. Sedgwick.

For the respondent there was a brief by Nash & Nash, and oral argument by L. J. Nash.

MARSHALL, J. At the threshold of this case stands the finding of the jury that the respondent's dog "did not attack or frighten the horse;" "that the dog did not bite the horse."

Nolan v. Kroening, 130 Wis. 79.

If that has support in the evidence it, of course, disposes of the case in respondent's favor, leaving no ground for a new trial unless such ground exists in the instructions of the court or the ruling on the motion to set the verdict aside for misconduct of the jury. Errors are assigned respecting rulings as to the reception and rejection of evidence, but, so far as we can see, as claimed by respondent's counsel, they do not relate to the finding in question, so we will first devote our attention to the question of whether it is contrary to the evidence.

The rule has been too often stated to leave necessity for more than a reference to it, that if there is any credible evidence to support a verdict it cannot be disturbed on appeal; that in determining whether there is such credible evidence or not the record should be viewed in the most favorable light it will reasonably bear in support of such verdict, and that in deference to the conclusion of the trial judge in respect to the matter,-who saw all the witnesses and heard their testimony, and from his superior point of view must be presumed to have had much better opportunity for determining the truth than the appellate court can have,-such conclusion should not be disturbed unless it appears to be clearly wrong. The mere fact that there was room, as appears by the record, for the trial judge to have reached a different conclusion or is room for us to reach one looking alone at the printed pages presented, not regarding the superior opportunities of the trial judge as stated, is not sufficient. Powell v. Ashland I. & S. Co. 98 Wis. 35, 73 N. W. 573; Maanum v. Madison, 104 Wis. 272, 80 N. W. 591; McCune v. Badger, 126 Wis. 186, 105 N. W. 667. That doctrine is one of the most important guides in the exercise of appellate jurisdiction as to matters of fact. Often the appearance of a witness upon the stand while giving his testimony, the manner of his answering the interrogatories, and other things occurring under the vigilant eye of the trial judge, are legitimately the controlling