94 Wis. 549 | Wis. | 1896
1. The appellant complains that expert witnesses were permitted, against objection, to answer this question: “Will you state, Doctor, what the probabilities are for Mrs. Nichols to recover from this injury % ” • The ground of appellant’s objection, as stated by him, is: “ That it was not a question of probabilities as to permanent injuries, but of reasonable certainty.” Certainly, the effect of the whole testimony must be to establish a reasonable certainty.that the effects of the injury will be suffered in the future. That is well settled. But there is a clear distinction to be observed between the competency of testimony to be received, and its sufficiency, when received, to establish the ultimate fact to which the proofs are directed. On such questions as are not subject of absolute proof, the testimony should exhibit the nature and strength of. the probability. It is then for the jury to determine whether it amounts to proof of the ultimate fact, to a reasonable certainty. Testimony which tends, in some appreciable degree, to establish the ultimate fact, is competent to be received, even if, in the end, it should be found insufficient to fully establish it. Block v. Milwaukee St. R. Co. 89 Wis. 371. The rule must be practicable. USTo doubt it may often be a matter of considerable difficulty to satisfactorily define the line which divides between a strong probability and a reasonable certainty. The admission of the testimony was no error.
2. The experts agreed in opinion, in effect, that it would be at least a long time before the plaintiff would recover the full, natural use of either injured limb. On the subject
3. The appellant requested the court to charge that this “ was not a case where punitory damages could be allowed.” The court refused to so charge, but, on the contrary, charged, in effect, that this was a case where such damages could be allowed; that if they found that the appellant “was actuated by hatred or ill will towards the plaintiff, and that the assault, if any, was malicious, you may award the plaintiff such damages as, under the evidence, you think proper, by way of punishment to him for the assault.” Punitory damages have been allowed in this state from a very early day, in cases where the injury was inflicted under circumstances of aggravation, insult, or cruelty, with vindictiveness or malice. McWilliams v. Bragg, 3 Wis. 424. Certainly,- there was evidence from which the jury might reasonably have found this injury to have been inflicted from ill will and vindictiveness. The appellant’s own testimony is sufficient to show this. His version of the matter is, “ She kicked me, and I struck her.” The blow was in retaliation for the kick. It was a vindictive blow, not necessary for his protection from any threatened or impending injury from her, but purely from vindictiveness. His profession of sorrow immediately afterwards did neither undo the wrong nor atone for it. It was not necessary, in order to warrant exemplary damages,, that the blow should come from ill will or vindictiveness, long harbored; and the present provocation was apparently too inconsequential to fully account for it as a sudden outburst of excusable passion.
5. The court overruled appellant’s questions to the experts, by which he sought to show that a failure of the respondent to properly exercise her limbs might have been the cause of the permanency of her injuries. This was no error. There was no evidence to. show that;there was a want of proper exercise, and some affirmative evidence went to show that there was such exercise.. So, this expert evidence was immaterial, if obtained. Ro reversible error is discovered.
By the Oourt.— The judgment of the circuit court is affirmed.