203 Wis. 389 | Wis. | 1931
The following opinion was filed October 14, 1930:
The defendants first urge that the court erred in ruling that plaintiff’s pole was hot a snag pole. The statute, sec. 29.27 (2), defines the term “snag pole” as meaning any pole to which a number of fisK hooks or clusters of fish hooks of any kind or description are attached, and designated (designed) to be placed in or drawn through the water for the purpose of catching fish. Sec. 370.01 provides that certain rules stated “shall be observed” in the construction of the statutes of this state unless such construction would be inconsistent with the manifest intention of the legislature, among which rules is sub. (2), providing that “Every word importing the plural number only may extend
Sec. 29.05 vests in game wardens the right “to arrest, with or without a warrant, any person detected in the actual violation, or whom such officer has reasonable cause to believe guilty of the violation of any of the provisions . . .’’of the fish and game laws. It is considered that the use of the pole in attempt to snag fish, or the possession of it with design or intent to use it for that purpose, constituted a violation of the snag-pole statute, and that sec. 29.05 authorizes a warden to arrest with or without a war.rant a person caught in the act of so using or having the pole or caught under circumstances such as to constitute reasonable cause for the warden to believe he was using or having it for such purpose, and authorizes a warden to make án arrest either at the immediate time of so catching the person or subsequently.
If the pole was used or kept by the plaintiff as a snag pole the defendants’ arrest of the plaintiff was lawful 'and
Applying these views results in reversal and new trial of the false imprisonment count on the question of intent or design to use the pole to catch fish. And as the questions
Some other errors are alleged as ground for reversal. One is the court’s instruction as to burden of proof, giving it as to satisfy to a reasonable certainty by a preponderance of the evidence, instead of as to prove by a clear and satisfactory preponderance of the evidence. This was error under the rule of Bursack v. Davis, 199 Wis. 115, 225 N. W. 738, but the error was there held not to require reversal. The same should be held here and the case should not be reversed for that error alone.
The judgment allows costs to the plaintiff. Appellants contend this was error under sec. 29.05 (9), which provides that in any action against a game warden involving any official action the district attorney shall appear for the warden and no costs shall be taxed to either party. Upon the face of the statute the point is well taken, unless the exemption from liability for costs is unconstitutional as discriminatory class legislation. Nothing appears in the respondent’s brief to indicate that it is of this nature. The provision was apparently made because the amount of judgments for damages rendered against state officers for acts done pursuant to their official duties, when paid by the officers, are quite commonly reimbursed to them pursuant to act of the legislature. The state is therefore indirectly interested in such judgments. Costs are not allowed against the state in actions brought against it when such actions are permitted, and by analogy are not allowed against state officers in actions of the nature stated. This affords reasonable basis for
It is deemed advisable to mention another matter of practice. The trial judge considered $800 damages as high as the evidence would warrant, and awarded a new trial unless plaintiff would accept judgment for that amount. When, in case of an excessive award by the jury, option is given to the plaintiff to accept judgment for a less sum or stand a new trial, the amount fixed should be for the least amount the evidence will warrant. When the option is for a new trial unless consent is given to judgment for the greatest amount the evidence will warrant, this option is given to the defendant instead of to the plaintiff. Gerlach v. Gruett, 175 Wis. 354, 360, 185 N. W. 195, and cases there cited. This court, subsequently departed from this rule in a few cases but soon reverted to correct principles. The final word upon the subject is contained in Campbell v. Sutliff, 193 Wis. 370, 214 N. W. 374, and Rogers v. Lurye F. Co. 193 Wis. 496, 211 N. W. 782, 215 N. W. 457; followed in Nelson v. Duluth St. R. Co. 197 Wis. 28, 221 N. W. 388, and Russell Grader Mfg. Co. v. Budden, 197 Wis. 615, 222 N. W. 788.
By the Court. — The judgment is reversed and cause remanded for a new trial..
A motion for a rehearing was denied, with $25 costs, on February 10, 1931.