¶1(dissenting). I think the judgment in this ■case should have been affirmed. The case as decided seems to support a conclusion that if the boiler was defective from two ■causes, one of which was charged in the pleadings and the other not, and evidence properly admitted to establish the former defect but evidence erroneously admitted to establish the latter defect, a judgment based on a verdict finding defendants negligent in failing to warn plaintiff of any danger should be reversed. I do not think this is correct or in conformity with precedent. It is a very old rule, often acted upon by this court, that surplusage in a verdict, pleading, or other record ■does not annul or avoid that which is, aside from the surplus-age, sufficient. This rule was applied even in the most technical stage of the common law, and it should not be departed from now when none but prejudicial errors are cause for reversals.
151 Wis. 245
Brey v. Forrestal
Decided November 19, 1912
Wisconsin Supreme Court · decided 1912-11-19
Appeals from judgments of the circuit court for Milwaukee county: E. C. EschweileR, Circuit Judge. These are two actions in tort which were tried together before the same jury and on the same evidence. The defendants owned and operated, by means of employees, a dredging outfit for the digging of drainage ditches through swamp lands.
Cited by 2 later decisions — most recently October 1966
2 state decisions
Good law ✅— No negative treatment on recordhow we know
Reversed · Decided 1912-11-19
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