68 Wis. 405 | Wis. | 1887
This is an action to recover damages for an assault and battery alleged to have been committed by the appellant upon the respondent. The pleadings were the complaint and an answer simply denying the allegations of the complaint. The action was commenced in a justice’s court. A judgment was rendered in favor of the plaintiff in such court; and upon an appeal by the defendant to the circuit court, upon a new trial in that court, a judgment was again rendered against the defendant in favor of the plaintiff, and from that judgment an appeal was taken by the defendant to this court.
The only errors assigned by the appellant ai’e: “ (1) That the court erred in charging the jury that no justification was shown, or was attempted to be shown, by the defendant, and that the only question for their determination was ■the amount of damage the plaintiff had sustained. (2) That the court erred in charging the jury that the plaintiff was entitled to recover for injuries to his clothing as an element of damages.”
As to the first error assigned, the evidence conclusively shows that the defendant assaulted the plaintiff, knocked
The appellant insists, however, that if, under his answer, he would not have the right to give evidence to justify his assault upon the plaintiff, still the evidence which he now claims was a justification, or which at least tended to prove a justification, was given on the trial and received without objection; and that he was entitled, therefore, to the same benefit of it as though he had set up a justification in his answer. Admitting the correctness of this claim made on the part of the learned counsel for the appellant, we are of the opinion that the learned circuit judge was right in holding that the evidence, on the part of the defendant did not show any justification for the assault. Nor was it of such a character as to make it incumbent upon the court to submit the question of justification to the jury. Taking all the evidence in the case, it shows a violent and wholly unjustifiable assault upon the plaintiff by the defendant^ without any pretense of necessity on his part to make it in defense of his property.
As to the second alleged error, it is true that in his complaint the plaintiff does not set out, as an item of damage,
By the Court.— The judgment of the circuit court is affirmed.