50 Wis. 645 | Wis. | 1880
We can find no error in the record, except in the giving of a wrong instruction, and in the refusal to give a proper instruction requested, in respect to the mitigation of damages. It may be that an order granting a new trial is reviewable upon an appeal from the final judgment, as an “ order involving the merits and necessarily affecting the judgment.” 4 Wait’s Pr., 343. But this we do not decide. The better practice, however, would seem to be, to appeal directly from such an order, and, in the event of its refusal, the expenses of the second trial would be saved, and the necessity of passing upon two separate records of two different courts on one appeal, as in this case, would be obviated. But in this case the exception to the order was afterwards waived by the appellant, in noticing the cause for trial, in voluntarily following it into another tribunal on change of venue, and going to trial therein without objection, and accepting costs as the terms of the change of venue, and in talcing other affirmative action in the cause inconsistent with a reliance upon such exception. Mont
The county court instructed the jury as follows: “The defendant is allowed to show, ipi mitigation of actual damage of character, if he can, that at and before the time of the alleged slanders his general character was bad in respect to the crime charged, but this does not mitigate the exemplary, vindictive or punitory'damages.” The learned counsel of the appellant requested the court to charge as follows: “If the jury find that plaintiff had the reputation of being a horse-thief, that may be taken into consideration to mitigate the damages, both compensatory and exemplary.”
Testimony had been introduced on the trial by the appellant tending to show that the general reputation of the plaintiff was bad in respect to the crime imputed in the slanderous words. There appears in the record another instruction as asked on behalf of the appellant, somewhat contradictory and inconsistent with the above instruction requested to be given, and substantially like the above instruction given; and the learned counsel of the respondent insists that thereby the ex-’ ception of the appellant to the giving of the first and the refusal to give the second of the above instructions is waived. On the other side it is claimed in the argument that said contradictory instruction was not asked, and became a part of the record by mistake. "We think this mistake is clearly obvious; for it is very unlikely that the learned counsel of the appellant would except to an instruction given, and at the same time ask that an instruction be given exactly like it, and then except to the giving of the one and the refusal of the other. "We the more readily treat this as a mistake, because it relieves the learned county judge of the gross inconsistency of having given and re
This question was not directly raised in B- v. I-, 22 Wis., 372, but the language quoted in the opinion by Mr. Justice Cole, from authorities cfted, expresses the true ground of the rule: “Because such proof bore directly upon the question of malice, and also as to what was the extent and degree of injury which the plain tiff had sustained by the alleged slander; for it was said that it could not be pretended or maintained by any one that a person of disparaged fame is entitled to the same measure of damages with one whose character is unblemished.” After much searching I have been unable to find a case where this direct question has been raised or ruled upon; but there are many cases where the language of the opinion clearly indicates the correct rule, and in all of the cases it seems to be taken for granted that no distinction should be made in the class of damages, whether compensatory or puni-tory, as the subject of mitigation by proof of bad reputation, as in King v. Root, 4 Wend., 113; Parkhurst v. Ketchum, 6 Allen, 406; Stone v. Varney, 7 Met., 86; Buckley v. Knapp, 48 Mo., 152; Flint v. Clark, 13 Conn., 368. In this last case, speaking of all damages, both compensatory and exemplary, the court says “ that damages may be given for an injury to character in proportion to its worth.” In Stacy v. Portland Pub. Co., 68 Me., 279, this subject is most fully and most learnedly and philosophically treated, and the true ground of mitigation in such cases is discovered and authoritatively laid down. The damages found were nominal, and the jury were instructed that they might find damages to the character, and, in addition, exemplary damages by reason of malice. The opinion holds: “There is no room for punitive damages here.
The rule in cases of malicious and aggravated assault, where provocation may mitigate the exemplary damages, but not the compensatory, can have no application to cases of injury to character. Por, in the former case, the provocation cannot possibly lessen the damages to the person; but, in the latter, a bad and worthless character cannot be injured as much as a good one. The true rule is, then, that in all such cases the compensatory and punitive damages are inseparably blended, and the punitive damages are dependent upon the compensatory, and must be proportional, and mitigation applies equally to both.
It is to be regretted that, by reason .of this error, the judgment must be reversed and a new trial awarded, when the case was so fully and ably tried, and with great expense, and
By the Court. — The judgment is reversed, with costs, and a new trial awarded.
