133 Wis. 623 | Wis. | 1907
The most important question presented is whether the trial court abused judicial discretion by allowing the issue of justification of the assault to be brought into the case after completion of the trial and rendition of verdict.Doubtless such a step is very unusual where the opposing party has at all times protested against the trial of such issue; and if, in such case, it is believable that such party might have modified his conduct by offering other evidence or the like, such an amendment would probably be condemned even on appeal. Manitowoc S. B. Works v. Manitowoc G. Co. 120 Wis. 1, 97 N. W. 515; Guerin v. St. Paul F. & M. Ins. Co. 44 Minn. 20, 46 N. W. 138. Nevertheless the power of the trial court to allow amendments “in furtherance of justice” is very broad. Ill. S. Co. v. Budzisz, 106 Wis. 499, 503, 82 N. W. 534; Gates v. Paul, 117 Wis. 170, 94 N. W. 55; Kleimenhagen v. Dixon, 122 Wis. 526, 100 N. W. 826; There was much in this ease to appeal to discretion. The complaint, though upon liberal interpretation
The conclusion thus reached disposes of many of the specific assignments of error, such, for example, as are predicated upon instructions submitting to the jury the issue of justification, or upon admission of evidence in support thereof, though we find none of the latter which was not necessarily admissible under the general denial as merely descriptive of the transaction narrated by plaintiff as basis for her cause of action or her demand for punitory damages. Yeska v. Swendrzynski, supra.
The third and fourth assignments of error cannot be sustained. They were upon the striking out of answers of two witnesses, both of which merely narrated statements of others and were hearsay. The statement of the plaintiff to her niece as to her pain and injury after she had been precipitated from the porch was not res gestee to the assault, and, in any event, could be material only to the question of damages, which the jury never reached. The ruling could not prejudicially have affected the verdict.
All of plaintiff’s requests for instruction, refusal of which is assigned as error, were by their words predicated upon a declaration that verdict must go for plaintiff because defendant had conceded an assault. Such premise is of course negatived by the change of issues accomplished by the amend
Some other errors are assigned, but they seem to ns so obviously unfounded or so immaterial to the result as not to justify discussion here. We find nothing which necessitates reversal.
By the Court. — Judgment affirmed.