Flannigan v. Stauss

131 Wis. 94 | Wis. | 1907

Timlin, J.

The appellant assigns two errors for which he contends the judgment should be reversed.

“Eirst. The court erred in its charge to the jury.” This very general assignment of error is attempted to be supported by a very general exception as follows: “The above-named defendant . . . excepts to the judge’s charge to the jury in the above entitled action.” This exception was filed with the clerk, but is not incorporated in the bill of exceptions otherwise than by the following recital: “To which instructions the defendant duly excepted and which exception was in writing duly filed before the close of said term.” In his motion for a new trial the only ground specified referring to this subject was, “Because the court erred in instructing the jury as indicated by written exceptions on file.”

We have taken pains to quote these three several attempts at exceptions to the instructions because they well illustrate how assignments of error and exceptions ought not to be taken if they are intended to be effective. Hamlin v. Haight, 32 Wis. 237; Thrasher v. Tyack, 15 Wis. 256; Corcoran v. Harran, 55 Wis. 120, 12 N. W. 468; Bouck v. Enos, 61 Wis. 660, 21 N. W. 825; Bigelow v. West Wis. R. Co. 27 Wis. 478. An exception to a charge should challenge the propriety or legal accuracy of some definite proposition in that charge. If there be more than one erroneous proposition the safer way is to file an exception to each. With due regard for precedent we are consequently unable to examine or review any part of the instructions in question.

The second assignment of error is as follows: “The court erred in denying the defendant’s motion for a new trial.” The motion for a new trial specified six grounds, but the brief of appellant states that this assignment of error is based on the ground that the damages awarded by the jury are excessive, and this is the only ground argued in support of that as-' signment of error. It is conceded that the words charged, if used, were actionable per se. There is also some evidence-tending to sustain a claim for punitory damages. It is contended, in support of the claim that the damages are excessive,, that the evidence shows the respondent to be “a woman extremely common, if not coarse.” This is based upon the language alleged to have been used by her toward the appellant. It is well for the human race that female chastity is not peculiar alone to- .the educated and refined, but was also characteristic of the “common and coarse” mothers of the stout barbarians who laid the foundation of our present system of education and refinement, and who largely by their possession and preservation of this virtue became the master spirits of the-world. It is, to say the least, no indication of decadence when the body of our people represented by the jury vigorously resent false and unfounded imputations against female chastity.

It is next contended that the alleged slanderous words were-spoken in quarrel and this should have the effect of reducing the punitory damages. No doubt this is a proper consideration in mitigation of damages, but the questions presented to this court are quite different from the ordinary consideration of mitigating circumstances by a jury. It is said in Donovan v. C. & N. W. R. Co. 93 Wis. 373, 67 N. W. 721, that in an action for unliquidated damages arising from a tort the court is not at liberty to set aside a verdict on the ground that it is. excessive unless the excess is such as to create the belief that the jury have been misled either by passion, prejudice, or ignorance. Applying this test to the verdict in question there is no ground of reversal.

By the Court. — The judgment of the circuit court is affirmed.