Lamb v. Stone

95 Wis. 254 | Wis. | 1897

Newman, J.

The answer in effect admits the arrest of the plaintiff by the defendants, and justifies it on the ground that they had detected the plaintiff in the act of violating the laws for the protection of game “ by shooting in the nighttime.” The issue made by the answer was whether the plaintiff was, at the time of the arrest, violating the law by shooting in the nighttime. He admits that he had secured two ducks that morning. The issue was narrowed, on the trial, to the question whether it was in the nighttime. If it was in fact in the nighttime, he might be lawfully arrested by them; otherwise, not. The issue was a narrow one. The evidence must be confined to the issue. It was irrelevant to this issue whether there were notices to warn against trespassing, as well as whether the plaintiff was, in law, technically a trespasser; nor could so purely technical and •constructive a trespass as floating in a boat over tbe lands of third parties, which were under the water, be such a prov■ocation as should legitimately mitigate the damages of a real assault and battery. So the trial court did not err in •excluding evidence relating to such matters. Whether the ■owners of the land, or their agents, might remove the plaintiff, using no more force than was necessary, was a question not involved, for no such defense was pleaded. Special instructions, relating to such unpleaded defense, were rightly refused.

The court gave instructions which covered the issue made by the pleadings and evidence fully, clearly, and satisfactorily. They were, in effect, that if the plaintiff was found :by the defendants, shooting ducks in the nighttime, the defendants were justified in arresting him; otherwise, not. 'That covered the whole issue. What it would be lawful to do in a case of merely technical trespass was not involved. Arrest without a warrant, for a felony, may be justified ■upon reasonable grounds of belief; not so for a mere trespass or misdemeanor, except when so provided by statute. 'The court instructed the jury that, if they should find that' the assault and battery was inflicted “ under circumstances of aggravation or cruelty, with vindictiveness- or malice,” ■•they might “ award exemplary damages by way of punishment to the defendants.” This was right. Nichols v. Brabazon, 94 Wis. 549. The verdict is not so large as to require ■it to be set aside as excessive.

By the Court.— The judgment of the county court of Eond ■du Lac county is affirmed.