114 Wis. 589 | Wis. | 1902
This is a plain case of a debate commencing in words and terminating vi et armisj the one phase presenting about as much of appeal to pure reason as the other. If each party had been satisfied to merely enforce his arguments by words upon the ear of the other, he might have claimed victory without peril of appeal and reversal; but, when he sought to impress his logic upon the nose and eyes of his •opponent, he brought the discussion within the arbitrament of the courts. And after all, the really important question— where the sewer leaked — -will not be settled nearly so conclusively as it might have been by a few minutes’ diligent úse of a spade. But however unworthy of intelligent beings the whole proceeding may have been, the courts, being invoked, must treat the question presented with the gravity due to more worthy subjects of litigation. The assignments of error are numerous; the subjects of debate much more so; but many of them are either so immaterial to the result, or so without proper objection and exception, as not to justify examination or decision. We proceed to consider the more important.
Error is assigned upon a ruling that the jury could not,
That, in the course of the same fracas, one party at one time and his opponent at another may be guilty of assault, so that each may be entitled to recover damages, seems to be entirely settled by the authorities. Dole v. Erskine, 35 N. H. 503; Darling v. Williams, 35 Ohio St. 58; Barholt v. Wright, 45 Ohio St. 177, 181, 12 N. E. 185; Shay v. Thompson, supra; Cooley, Torts (2d ed.) 190. The original aggressor continues such so long as the a other restrains himself within the bounds of defense, but, when the latter exceeds those bounds by using more than necessary force, he thereupon becomes aggressor, and liable for such damages as he thereby inflicts. As the principle is stated in Dole v. Erskine, supra, and most of the other cases, there are, in effect, two assaults, one succeeding the other, separated, indeed, by only a moment of time, but as effectively in law as if a day had intervened, so that they are different transactions. This sounds well on-paper, and is perhaps too well supported by authority to be now repudiated; but we confess serious difficulty in applying* it to the ordinary physical encounter, where victory may be continually shifting her perch from one combatant to the other, and where each, as he gains the advantage, change
There being a possibility of two rights of recovery resulting from one continuous encounter, the next question arising is whether they may be subject of counterclaim in the same action, so that the jury may make allowance to each, and, setting off one against the other, give ultimate recovery for only the balance to him most injured by wrongful acts of the other. Counsel does not cite any authority for a favorable answer to this question, unless, as he contends, Pelton v. Powell, 96 Wis. 473, 71 N. W. 887, is such. That case does not decide the exact question. There the plaintiff claimed that, in the entire affray, defendant was the aggressor, while defendant claimed that all his acts were defensive, and that the same acts set forth in the complaint constituted an assault on him by plaintiff, for which he counterclaimed damages. The court held that the transaction set up by the counterclaim was identical with that in the complaint, and therefore the defendant might plead those acts as a counterclaim arising out of the same transaction. It was pointed out that the facts of the counterclaim served to defeat plaintiff’s cause of action. The result was that the parties might try the question who committed the one assault, and judgment be rendered against him in favor of the other. There was no contemplation of a severance of the fracas, so that during one period defendant might be aggressor and liable, and during another the situation be reversed. That case is entirely analogous to two in New York, where collision of vehicles was claimed by the owner of each to have been caused solely by negligence in the other; each denying any negligence on his own part. Counter
Again, error is assigned because, after, defendant had offered in evidence certain selected extracts from plaintiff’s •deposition, taken under sec. 4096, Stats. 1898, the latter was permitted to offer the whole of that deposition, over defendant’s objection. That objection, however, was general, as also the exception; and as some parts of the deposition clearly related to, and served to qualify and explain, the extracts which defendant had introduced, it can hardly constitute reversible error, although other parts were inadmissible.
A further objection to certain testimony as to the degree and time of plaintiff’s disablement was overruled, but the jury were instructed not to allow any damages for loss of time, because not alleged in the complaint. In this was no error, for the evidence was admissible to show the extent of plaintiff’s injuries for which general damages were claimed.
Again, refusal to give in hcec verba an instruction requested by defendant cannot be considered, for no exception was taken until after the trial. The right to take exceptions after trial rests- on sec. 2869, Stats. 1898, and is confined to the charge itself. Firmeis v. State, 61 Wis. 140, 20 N. W. 663; Little v. Iron River, 102 Wis. 250, 18 N. W. 416.
The same reason precludes consideration of the various remarks' by plaintiff’s counsel of which complaint is now made, with one exception, to be noticed later. The record discloses neither objection nor exception when those remarles
One remark of plaintiff’s counsel is not thus excluded from consideration, it having been objected to when made. It occurred in the closing argument, and is as follows:
“I know Glancy. If there is $500 on the table, and Clancy’s honor on that table, and Glancy was going to lose both, you can bet on one thing, — that Glancy would grab the $500, and let the honor go. Defendant’s counsel: I except to those remarks of the counsel as improper. By the court: Well, Mr. Barber, that is rather questionable. I don’t know whether it is going any further than counsel has a right to go or not. Plaintiff’s counsel: Well, I am sorry if my remarks disturb counsel. I could make them stronger. Defendant’s counsel: I except to that remark.”
That the statement objected to, upon its face, is improper, as an attempt to state facts to the jury as of the knowledge of the counsel, and not by way of inference from the evidence which they had a right to consider, is obvious. We have carefully examined it in connection with the rest of the argument, which is embodied in the bill of exceptions, and have sought to bring it within the construction which respondent’s counsel claimed for it in the oral argument before us, namely, as merely urging that from the evidence, or from the appearance of witnesses^ he inferred that Glancy’s character .was as described; but we can find nothing to warrant that view, or to deprive the remark of its character as an assertion upon the knowledge of the counsel. The statement is made in connection with discussion as to the truthfulness of Clancy’s testimony, evidently for the purpose of justifying an imputation of falsity thereto. We fully appreciate that, in the heat of argument, fervor and partisanship are to be expected from
Error is assigned for that the court gave a large number of instructions requested by the plaintiff, not applicable to any specific questions, and dealing generally with the rules of law applicable to the ease, and, further; that he did not inform the jury that such instructions were requested by the plaintiff; also that, when he gave certain instructions re
It is also assigned as error that tire court instructed the jury generally on the rules of law and upon the rights of the parties, some of the instructions being such as to fully inform the jury of the effect on the rights of the parties of the answers to questions in the special verdict. This criticism seems to be borne out by the record. In instructing upon the second question, the jury are told that, if the party first assaulted uses excessive force to repel the assault, he becomes himself the aggressor, and liable. This was wholly unneces*-sary to enable the jury to answer the simple question whether the party first assaulted did use excessive force; but, if the jury were' desirous of favoring one side or the other, it taught them the efficacy of’ answering “Tes” or “No” to that ques
“Even if you should find that the defendant struck the first blow, but should find also that the plaintiff used more force than was reasonably necessary in repelling the assault or defending himself, then the plaintiff is not entitled to recover damages-, but the defendant would be.”
This instruction falls squarely within the reasons stated in Ward v. C., M. & St. P. R. Co. 102 Wis. 215, 225, 78 N. W. 442; New Home S. M. Co. v. Simon, 104 Wis. 120, 126, 80-N. W. 71; Musbach v. Wis. Chair Co. 108 Wis. 57, 70, 84 N. W. 36; Byington v. Merrill, 112 Wis. 211, 88 N. W. 26. Under the authority of those cases, we must hold that reversible error was committed in imparting it to the jury.
We find no other assignments of error which demand discussion. Upon those presenting the improper remarks of respondent’s counsel, and the giving of a general instruction to the jury informing them directly of the result of their answers to special verdict, reversal must be pronounced.
By the Court. — Judgment reversed, and cause remanded for a new trial.