Metzinger v. Perry, 197 Wis. 16

Metzinger v. Perry

197 Wis. 16 | Wis. | 1928

Eschweiler, J.

An. examination of the record in this case convinces us that the right result was reached and no injustice to plaintiff done thereby, and for those reasons as well as by the authority of sec. 274.37, Stats., the judgment, should and must be affirmed. Braun v. M., St. P. & S. S. M. R. Co. 170 Wis. 10, 17, 172 N. W. 743.

The appellant has numerous assignments of error as grounds for his claim that the judgment should be reversed and a new trial granted. None of them, however, can have any substantial effect upon the controlling feature of this case, which i's embodied in the jury’s findings that the assault and battery on the plaintiff by conductor Perry was done with the use of only the necessary force to repel an assault and threatened battery by the plaintiff, and which findings are amply supported. This renders immaterial a discussion of the details of many of the alleged errors.

*20The admission by Perry, through his pleading and testimony, of the use of force in self-defense, then properly placed the burden in this case upon plaintiff to satisfy the jury by a fair preponderance of the evidence that Perry used more than reasonable or necessary force in such self-defense, and the court so properly charged the jury. Ogodziski v. Gara, 173 Wis. 371, 377, 181 N. W. 227.

• The court charged the jury to the effect that if they found that plaintiff used abusive or insulting language toward Perry at the time of the striking, then such language might be considered in mitigation of plaintiff’s compensatory damages. This was error, for0such evidence would be proper for consideration only on the question of punitory damages. Korney v. Boyd, 186 Wis. 594, 597, 203 N. W. 371. This went only to the question of damages and is immaterial.

We see nothing to be gained by a further discussion of the many questions so earnestly úrged upon our attention by appellant’s counsel. If there were errors on the trial they could not now be permitted to change the result reached in the court below.

By the Court, — Judgment affirmed.