| Wis. | May 15, 1884
The plaintiffs in this action are husband and wife, and the defendants are father and his two sons. The action -was in the nature of an action on the case for an injury to the wife, caused, as alleged in the complaint, by the joint acts of the defendants.
. The evidence given on the trial shows pretty clearly that, while the plaintiffs were passing along the highway with their team and wagon, in front of the defendant’s house, on a Sunday, going to church, the two young sons of the defend
The jury, under the instructions of the court, found a special verdict, and assessed the plaintiffs’ damages at the sum of five dollars. From the judgment entered on such verdict Sarah Hoverson appeals to this court.
The case, though not involving any great amount of money, has been argued by counsel orally and in the submitted briefs with a degree of ability and care highly commendable.
The learned counsel for the appellant presents several points upon the rulings of the court upon the trial rejecting evidence offered by him, for which he claims the judgment should be reversed. It will be seen by an examination of the record that it became important for the plaintiffs to connect the father with the acts of his young sons, which the plaintiffs allege caused the injury complained of, and for this purpose the plaintiffs offered evidence tending to prove that the sons had frequently, before the day upon which the accident happened, called abusive names, shouted, and frequently discharged fire-arms when persons were passing the house of the defendants, and that this was often done in the presence of their father. All evidence of this kind was excluded. This, we are inclined to hold, was error. If the father permitted his young sons to shout, use abusive language, and discharge fire-arms at persons who were passing along the highway in front of his house, he permitted that to be done upon his premises which, in its nature, was likely
The next error complained of is the refusal of the court ■to permit the husband to be examined as a witness on the trial. Although the action was for the recovery of damage done to the person of the wife, still the husband was a : party to the action, and under the decisions of this court he •was a competent witness for the plaintiffs. It seems to us • that the ruling of the court below was in direct conflict with • the decisions of this court in Hackett v. Bonnell, 10 Wis., 471, which decision- wag approved and affirmed by this court
Other exceptions to the rejection of evidence were taken, but it is unnecessary to consider them, as they will not be likely to occur upon a new -trial.....
The nonsuit in favor of the father upon the first cause of action stated in the complaint was, we think, improperly granted, even" upon the evidence admitted by the court. There was at least some evidence admitted upon which the jury might have held the father liable for the acts done in the morning. On the case made by the plaintiffs, under the too strict.rule held by the court.as to the admission of evidence, there was still, enough to carry the case to the jury upon both the causes of action stated in the complaint; at least, so, far as the father' was' concerned. '
The exceptions to the rulings as to the form of the special verdict need not be considered, as there must be a new trial for the errors-above suggested. We deem it proper, however, to say that the- judge, in his instructions upon the following question submitted -to them, “Did the defendant Frank Nolter direct his sons, the other two defendants, to make the noise they did when the plaintiffs were passing thq house with their team?” fell into an-error tvhen he inT structed them “ that in order to answmr this question in the affirmative they must be satisfied from the evidence that he by word so directed his sons to make the noise.” This wa$ too strict a limitation upon the subject. The evidence might have satisfied the jury that he directed the acts of his sons, but they might be unable to find evidence that he did so direct it by express words of command. Certainly no
For the errors mentioned the judgment must be reversed. By the Court. — ,The judgment of the circuit court is reversed, and the cause remanded for a new trial.