Morely v. Dunbar

24 Wis. 183 | Wis. | 1869

Dixon, C. J.

This, case comes up on exceptions to portions of the charge, and to the refusal of the court to give several instructions asked by the defendant., Of the exceptions to the charge, it is enough to say that they are not well taken. A charge more clearly and fairly stating the law of the case, could not well have been given. '

Of the instructions asked, the first and second were properly refused, because they ignored entirely the question whether the defendant was actuated by malice. If he was, then, even if provoked, or if the plaintiff Mrs. Morely was a trespasser upon his lands, he might still be compelled to pay smart money. The court charged correctly, upon this point, that, if the defendant inflicted the injuries under circumstances of aggravation, insult, or cruelty, with vindictiveness or malice, exemplary damages might be given; and that, in deciding whether it was a proper case for the imposition of such damages, and what they should be, the jury were to consider all the facts and circumstances surrounding the case, including the fact that Mrs. Morely was upon the defendant’s premises, picking his berries; and, if they so found, also the fact that she, by word or act, provoked him to commit the injuries.

The second instruction asked is the only one about which I have experienced any difficulty. As above stated, the court charged that if Mrs. Morely, by word or act, provoked the defendant to commit the injuries, it was a -circumstance to be considered by the jury in determining whether exemplary damages should -be given, and the amount of such damages. This request, as I understand it, was to the effect that the same circumstance might be considered in fixing the amount of actual or compensatory damages which should be recovered by the plaintiffs, and that such damages might be reduced by reason of such provocation. I was, at first, strongly inclined to the opinion that the refusal of this request was error, for which the judgment should be reversed. For I think, notwithstanding what was said in Birchard v. Booths 4 Wis. 75, 76, that circumstances of provocation attending the transaction, or so recent as to constitute a part of the res gestes, though not sufficient entirely to justify the act done, may constitute an excuse which will mitigate the actual damages; and, where the provocation is great and calculated to excite strong feelings of resentment, may reduce them to a sum which is merely nominal. This seems to follow as the necessary and logical result of the rule which permits exemplary damages to be recovered. Where motive constitutes- a basis for increasing the damages of the plaintiff above those actually sustained, there it should, under proper circumstances, constitute the basis for reducing them below the same standard. If malice in the defendant is to be punished by the imposition of additional damages, or smart money, then malice on the part of the plaintiff, by which he provoked the injury complained of, should be subject to like punishment, which, in his case, can only be inflicted by withholding the damages to which he would otherwise be entitled. The law is not so one-sided as to scrutinize the motives and punish one party to the transaction for his malicious conduct, and not to punish the other for the same thing; nor so unwise as not to make allowance for tke infirmities of men, when smarting under the sting of gross and immediate provocation. If it were, then, as lias been well said, it would frequently happen that the plaintiff would get full compensation for damages occasioned by himself- — a result which would be contrary to every principle of reason and justice. And so I find the uninterrupted course of decisions,' both in England and this country, of which I cite the following: Robinson v. Rupert, 23 Pa. St. 523; Fraser v. Berkeley, 7 C. & P. 621 [32 E. C. L. 558]; Millard v. Brown, 35 N. Y. 297; Finnerty v. Tipper, 2 Campb. 77; Avery v. Ray, 1 Mass. 11; Cushman v. Ryan, 1 Story, 100; Gaither v. Blowers, 11 Md. 551, 552; Child v. Homer, 13 Pick. 503; Keyes v. Devlin, 3 E. D. Smith, 518; Rochester v. Anderson, 1 Bibb, 428; Lee v. Woolsey, 19 Johns. 319; Barry v. Inglis, Taylor (N. C.) 121; Ireland v. Elliott, 5 Iowa, 478; Maynard v. Beardsley, 7 Wend. 560; Waters v. Brown, 3 A. K. Marsh. 559; Prentiss v. Shaw (Sup. Ct. Maine), 8 Am. Law Reg. N. S. 712. I think, therefore, that the request was, in point of law, correct; and if the facts disclosed at the trial were such as to call for an instruction of the kind, I should hold that it was error to refuse it. But an examination of the evidence satisfies me that there were no circumstances of provocation requiring such an instruction to be given. It was inapplicable to the facts of the case, as shown by the witnesses on both sides. No words of provocation whatever were proved. The defendant himself does not testify to any. The only circumstance which can be at all considered as of a nature to have provoked the defendant was, that Mrs. Morely was upon his uninclosed woodland, picking berries. Having gone there for this purpose, and being so engaged, the defendant found and ordered her away ; and as she was proceeding in obedience to his orders, and, as she testifies, as fast as she could, he pursued her for some distance to the highway, inflicting many severe injuries •upon her person with, kicks and blows from a clnb, and tiren caught and scattered her berries in tire road. It appears • that she did not know that the premises belonged to the defendant, and had no previous notice that he objected to persons going there. The beating was most aggravated and cruel; .and the presence of Mrs. Morely upon the land of the defendant was not a circumstance calculated to excite any peaceable or well-disposed person to such conduct. The going of people upon the wild and uninclosed lands of others for the purpose of picking berries, or in pursuit of game, and for other like objects, is common throughout the country, and is almost universally regarded as quite harmless and innocent. The defendant knew this, and that Mrs. Morely was but very slightly, if at all, at fault, and should have moderated his conduct accordingly. As a circumstance of provocation it was scarcely worthy of notice; and the judge went quite far enough, if not too far, when he told the jury that they might consider it by way of mitigating the pxrnitory damages.

The third instruction asked- proceeded upon an erroneous view of the law, and was rightly refused. Mental suffering, resulting from the bodily injuries complained of, is a ground for damages in actions of this kind. Taber v. Hutson, 5 Ind. 322; Cox v. Vanderkleed, 21 id. 164; Tyler v. Pomeroy, 8 Allen, 480; Canning v. Williamstown, 1 Cush. 451.

That the fourth proposed instruction was erroneous and ought not to have been given, see Mercer v. Wright, 3 Wis. 645.

And the fifth was not applicable and pertinent to the evidence. It assumed that Mrs. Morely used language to provoke the defendant to anger, of which there was no proof; and was, in other respects, incorrect.

It follows, that the judgment must be affirmed.

By the Court. — Judgment affirmed.