155 Wis. 590 | Wis. | 1914
In tbis action for damages caused by false imprisonment and assault and battery tbe trial court directed a verdict in favor of tbe infant plaintiff for compensatory damages and submitted tbe question of punitory damages to tbe jury. Tbe latter assessed against tbe defendant $1,000 compensatory damages and $110 punitory damages. In bis memorandum decision denying a motion for a new trial tbe learned circuit court stated with reference to tbe compensatory damages:
“Tbe amount is mucb larger than it seems to me should have been assessed, for I cannot' feel that tbe defect in plaintiff’s eyesight is attributable to any act of the defendant. Yet I think tbe jury bad evidence before them to justify them in finding that it was, and it was their province to decide that question.”
When tbe trial judge is so impressed by the evidence, a just' exercise of bis discretion would warrant him in reducing tbe amount of the recovery or granting a new trial. Yet reversible error cannot be predicated alone upon bis failure so to do. It also appears to us that the amount of compensatory damages is mucb larger than should have been assessed by tbe jury. These two things must be taken to accentuate errors in the admission ánd exclusion of evidence bearing upon the amount of damages which otherwise might have been passed as nonprejudicial.
■ The defendant is the keeper of a country store at Hersey in this state and the plaintiff is a school boy thirteen years of age. The plaintiff offered evidence tending to show that on April 1, 1912, while be was in defendant’s store and near tbe tobacco showcase, he was forcibly seized, publicly accused of the theft of tobacco, forcibly detained for a considerable
“We are not going to try the question of larceny in this' case, or whether if was his tobacco or the boy’s tobacco. It is absolutely of no importance. If the boy had stolen it, it didn’t give him any right' to arrest him, if that is a fact that he did.”
The law on this subject is found in Bergeron v. Peyton, 106 Wis. 377, 82 N. W. 291. Under the circumstances in this case it would not' constitute a justification for the arrest made, but it would have an important bearing in mitigation of damages both compensatory and punitory. So it did have something to do with the case, and it was necessary to try the question of larceny, and the expression was erroneous and prejudicial to appellant if heeded by the jury.
On cross-examination of the plaintiff objection was made by plaintiff’s counsel to the following question: “When did you leave home?” The defendant then offered to show by such cross-examination that by reason of plaintiff having been found in a store about two months after the affair in question he was taken by the sheriff to the county jail and thence by the sheriff to New Richmond and placed with a family there. The offer was not very definite, but the cross-examination bore directly on the probable degree of shame and humiliation suffered by reason of the defendant’s .conduct and shordd have been allowed because it affected the amount to be recovered.
The testimony of the plaintiff to the effect that his eyesight was good prior to the battery but impaired thereafter
Where the trial court was himself in doubt about' the justice of the verdict on this question of damages, where these errors intervened at the trial, and where this new evidence was presented, a new trial should have been granted. The judgment must be reversed and the cause remanded for such new trial.
By the Court. — It is so ordered.