Hoffman v. Eppers

41 Wis. 251 | Wis. | 1876

LyoN, J.

I. No formula of a general denial is given in the statute, and hence any words which fairly import a denial of all the averments of the complaint, is a good general denial. We think such is the import of the answer in the present case. Certainly the pleader so intended it, and it is scarcely possible that the counsel for the plaintiff could have been misled by it. The answer is in the form of the general issue, under the common-law system of pleadings, in actions on the case for torts; and such form has a definite, well settled and well understood signification. Construed with a view to substantial justice between the parties, we find no difficulty in holding the answer a good general denial. E. S., ch. 125, sec. 21.

II. It was certainly lawful for the defendant to arouse the plaintiff from bis drunken stupor, and to endeavor to assist Mm to tbe court where he was required as a witness; and if the defendant did this as a friendly act, in a gentle and friendly manner, with an honest purpose to„ do the plaintiff no injury but only to aid him to reach the court, he is not liable to respond in damages for such acts. As we understand the charge of the learned circuit judge, he substantially so stated the law to the jury; and there is sufficient testimony tending to show that such was the motive and purpose of the defendant’s conduct, to render the instructions applicable to the case. The passage from Greenleaf on Evidence, which the judge read to the jury, sustains this view of the law. “ If one intend to do a lawful act, as to assist a drunken man, or prevent him from going without help, and in so doing a hurt ensue, it is not battery.” 2 Greenl. Ev., § 85.

It is earnestly argued that the judge should also have read the following passage found in the same section: “But to make out a defense under this plea, it must be shown that the defendant was free from any blame, and that the accident resulted entirely from a superior agency.” The judge was not asked to read this passage to the jury; and besides, the jury were instructed, in substance, that to relieve the defendant from liability, it must appear that he acted in good faith and from lawful motives — in other words, “ that he was free from any blame.” If he was free from blame, it does not seem very material whether the injuries of the plaintiff resulted from a s'tiperior, or some other agency. The meaning of the learned author whose language is above quoted, doubtless w:as, that, to make out the defense which he was considering, the accident must be caused by some agency for which the defendant is not responsible.

III. It necessarily follows from what has already been said, that the remark of the judge that “the intention in this action has a good deal to do with it ” (which remark has been quite sharply criticised), is strictly true. It also follows that the instructions on that subject proposed on behalf of the plaintiff, were properly refused. Such proposed instructions ignored the principle that the motives and intentions of the defendant were material on the question of damages. Hence, they were properly refused for that reason, if for no other.

IY. A witness called by the plaintiff testified that before the plaintiff was injured, and on the same day, he heard a person (whose name was not given) say something in the presence of the parties (who were then drinking in a saloon) about putting the plaintiff in jail. The witness was then asked what was said. The question being objected to, counsel for the plaintiff made the following statement and offer: “ In connection with this question, I offer to show that there was a conspiracy existing then and there between Yalentvne Eppers, defendant, Peter "Wagner and another, and divers other persons there present, to get Mr. Hoffman, the plaintiff, intoxicated, so that his testimony could not be used in the case of the state against Daniels, and also get him incarcerated in the county jail.” The offer to prove a conspiracy for the purpose of rendering the testimony admissible as to what was said about putting the plaintiff in jail, went upon the ground that, a conspiracy being proved, the declarations and acts of one of the conspirators are admissible in evidence against his cocon-spirators. The fault in the offer is, that it was not proposed to show that the person whose declarations the plaintiff was attempting to prove, was one of the alleged conspirators.

Had there been an independent offer of testimony tending to prove that the defendant was a party to a conspiracy to get the plaintiff intoxicated and to have him sent to jail, we incline to think it should have been received. Proof of sucn conspiracy would, we think, go far to disprove that the defendant acted from honest, lawful motives, when he aroused the plaintiff and tried to get him to the court.

Y. The remaining questions discussed by counsel relate to the rule of damages. The jury having found that the plaintiff is not entitled to recover, these questions become immaterial, and will not be determined.

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