71 Wis. 663 | Wis. | 1888
The verdict is abundantly sustained by the evidence. In fact, the promise and refusal are both conceded. The several errors assigned will be considered.
1. Two juries were out, and one juryman had been excused at the time the cause was called for trial. This left but eleven names in the box, and the defendant objected to proceeding with the trial for that reason. It was never intended that the business of the court should be suspended merely because the regular panel of jurors should be thus exhausted. On the contrary, the statutes expressly provide that “ when, by reason of challenge or otherwise, a sufficient number of jurors, duly drawn and summoned, cannot be obtained for the trial of any cause, civil or criminal, the court shall cause jurors, duly qualified, to be returned from-the by-standers, or from the county at large, to complete the panel for such trial, and the court may, in its discretion, order a special venire to issue for that purpose, or such jurors may be returned by the sheriff . . . without writ.” Sec. 2538, R. S. The lack of jurors was supplied as thus prescribed. The three peremptory challenges to which each party is entitled apply to a full panel of jurors thus called, as well as to the regular panel. Sec. 2851, R. S.; Gilchrist v. Brande, 58 Wis. 184. The exceptions thereto must be overruled.
2. The plaintiff testified, in effect, that she was at Mrs. Rockwell’s, October 26, 1885; that her sister then lived there; that the defendant was there on that day, and agreed to marry her. She was then cross-examined by the defend
3. The mere fact that the plaintiff’s counsel, in opening the case to the jury, stated, in effect, that judgment had been taken in the action by default at a former term, when the defendant’s counsel had just before stated the same fact, is not ground for reversal. Nor do we find anything in the remarks of counsel characterizing the evidence which should work a reversal.
A Numerous exceptions are taken to the remarks of the learned judge who presided at the trial. But the right to preside at all necessarily includes, within certain limits, a discretionary right to direct the proceedings. He must necessarily rule upon questions presented; the admission or rejection of testimony; indicate the line of examination or 'cross-examination to be pursued; and to limit or restrict the same when unnecessarily extended, or when there is any departure. It is impossible to perform such duties without oral communications which may at times characterize the question or testimony, or some part of it. It was certainly not error for the court, in effect, to announce that it could not wait until a certain jury should come in before proceed-
5. The defendant having absolutely refused to marry the plaintiff, obviated the necessity of any formal demand.
6. The court was requested to give a certain instruction to the jury to the effect that, under the complaint, the plaintiff was simply entitled to compensatory damages. The court failed to give such instruction in form, or to hear an authority read which is said to be in support of it. But the court did fairly submit to the jury the question as to what sum, from all the evidence, ought to be given to the “plaintiff by way of compensation for the injury sustained by the .breach of this contract.” They were, moreover, told, in effect, that the only essential question for them to determine was the amount of damages they should award to the plaintiff for the breach of the contract; that this question of damages, generally, in actions of this kind, was a difficult and delicate one, upon which the law had failed to furnish any rule by which they could measure the same by dollars and cents, but that they were to get at the damages
1. It is claimed that the damages are excessive. But this court will not interfere in such a case upon that ground merely, unless it is made apparent that the jury have been actuated by undue motives. Smith v. Woodfine, 87 Eng. C. L. 660; Richmond v. Roberts, 98 Ill. 480; Royal v. Smith, 40 Iowa, 615; Waters v. Bristol, 26 Conn. 398.
8. The contract of marriage being in effect conceded, there was no error in refusing to submit to the jury the question of its mutuality.
Upon a careful examination of the whole record we find no material error.
By the Court.— The judgment of the circuit court is affirmed.