75 Wis. 313 | Wis. | 1889
At the time of the occurrence in question, January 21, 1888, the defendant Rev. Father Thomas Dempsey was the pastor of St. Philip’s Catholic Church at Highland, Iowa county, Wisconsin, and had been for several years. During the same time the plaintiff was a lawyer at
On the part of the defendants it is claimed, in effect, that at the time of the occurrences in question the plaintiff was invited to the parsonage for the purpose of enabling the priest “ to lay the' AA'hole matter before the leading members of the church, and give the plaintiff an interview before them; ” that the plaintiff came voluntarily, and without harm from any one, “ and then and there retracted ” the charges contained in the letter. There is evidence tending to support these claims. On the other hand, the plaintiff claims the facts substantially as summarized in the foregoing statement. The eA-idence is more or less in conflict. The determination of such conflict was-the province of the jury; and Avith the preponderance of evidence this court has nothing to do. There is certainly some evidence in the case to sustain the claims of the' plaintiff; and hence, for the purposes of this- appeal, the verdict and findings of the jury must be accepted by us as verities. We are only
1. Error is assigned because the court struck from the answer the portion relating to the action of the village board while the plaintiff was president thereof in 1885, respecting the sale of liquor on Sunday, and certain publications and controversies in consequence thereof. Certainly, such allegations, had they been proved, would have constituted no defense or mitigation of damages for false imprisonment more than two years afterwards. It is never essential to prove surplusage, and when such proof is offered it should be rejected. The only seeming excuse for such allegations in the answer is the fact that the complaint also alleged matters entirely irrelevant to the alleged false imprisonment.
2. We are not disposed to reverse this judgment for the exclusion of the juror Nelson.
3. Error is assigned because the court refused to allow the defendants to prove that the charges contained in the letter were false. As indicated, the letter wa.s received by the priest six days before the alleged imprisonment, and the charge contained in the letter relates to matters therein stated as transpiring some time before. The learned counsel for the defendants are undoubtedly right in claiming, in effect, that it must be presumed that the priest was innocent of the charges contained in the letter and that such charges were false. Such we understand to be the well-established rule of law. In an action for libel in the publication of an article charging the commission of a crime, the usual practice is simply to prove the publication; and no one would think it necessary, in addition, to prove that the charges contained in the article rrere false, since the law presumes all such charges to be false, and puts upon the person making the same the burden of proving them to be true. Such being the presumption of law, the defendants had the full benefit of it upon the trial, while the plaintiff, in the eyes of the law, appeared upon the trial under the disadvantage of having falsely charged the priest with the crime mentioned in the letter. The defendants could not by proof have made the priest’s innocence of that charge
4. The defendants requested the court to instruct the jury as follows, which was given, after adding thereto the words in italics: “If the jury find that the plaintiff went to the house of the defendant Dempsey without the use of force, actual or threatened, to oblige him to do so; and if the jury further find that the defendants who went to the plaintiff’s office went there without any purpose to compel him to go to Dempsey’s house against his will, — then the defendants other than Father Dempsey are not responsible or liable for any blow or blows struck or acts done there,'merely because they were present. To make them liable for what transpired there, they must either have taken part in it, or must have known beforehand that it was to be done, or assented to it and countenanced it at the time it was done.” This is claimed to be an error, by reason of the provisions of sec. 2853, R. S. Where an instruction is requested and given after the same is modified, it is deemed refused as requested, and only given as modified; and where, as here, the modified instruction given includes all of the instruction requested, and, as modified, correctly states the law applicable to the case, no one is injured, and hence such modification is no ground for reversal. Sec. 2829, R. S.; Mason v. H. Whitbeck Co. 35 Wis. 164; Gilchrist v. Brande, 58 Wis. 192.
5. Exception is taken because the court charged the jury
6. Exception is taken to that portion of the charge to the effect that if the jury found that the plaintiff had been falsely imprisoned by the defendants, and that “ such illegal restraint was wilful and malicious,” then they were at liberty to “award to the plaintiff, in addition to the compensatory damages, such a sum by way of punishment and example as from all of the evidence ” in the case they might determine would be reasonable and just. Exception is also taken because the court charged the jury to the effect that if they found for the plaintiff, then he was entitled to recover full compensatory damages, and that such damages could not be lessened or mitigated by the writing of the letter. This last exception is strenuously insisted upon.
Whatever differences of opinion may have existed in this court prior to the decision of Craker v. C. & N. W. H. Co. 36 Wis. 657, as to the question thus involved, it was there settled that in actions for personal torts the “ compensatory damages ” recoverable “ include, not merely the plaintiff’s pecuniary loss, but also compensation for mental suffering;” that, in awarding such damages in such cases, “no distinction is to be made between other forms of mental suffering and that which consists in ‘a sense of wrong or insult.’ ” And a contrary intimation in a former case was
We are asked to overrule Fenelon v. Butts and Corcoran v. Harran, supra, upon the point above indicated. After a careful consideration of the matter, we must refrain from doing so. In the very recent case of Goldsmith's Adm'r v. Joy, 17 Atl. Rep. (Vt.), 1010, the above and other cases in this court, as well as numerous cases in other courts, are carefully reviewed, and the conclusion reached that “provocation cannot mitigate actual damages for assault and battery.” Of course a plaintiff’s compensatory damages are limited to such as he actually sustains, under all the circumstances ; and it is such actual damages that cannot be lessened or mitigated. In the case last cited, it is maintained that the right to recover actual damages is in no way de
U Assuming the facts to be as manifestly found by the jury, and we cannot say that the damages were excessive.
The other numerous exceptions in the case must be regarded as overruled. The several rulings to which such exceptions were taken are too clearly right to require mention.
By the Court. — The judgment of the circuit court is affirmed.