83 Wis. 50 | Wis. | 1892
On this appeal we shall go into no extended discussion of the rules of pleading and evidence applicable to actions to recover damages for personal injuries maliciously inflicted. If there be a recovery in this action at all, it must be for full compensatory damages; that is, the actual damages resulting from the injury complained of, without diminution by reason of acts of provocation not amounting to a justification of the assault. This rule was long since settled in this state. The cases on the subject are collected in Grace v. Dempsey, 75 Wis. 313. If the assault was malicious, the jury may award exemplary damages. Hence defendant must be allowed to allege and prove any facts which tend to rebut the existence of malice on his part. -'Proof that hp committed the assault under stress of recent provocation would tend to rebut malice. He may therefore allege in his answer and prove such re
As already observed, the defendant may allege and prove any acts of provocation committed by the plaintiff so recently before the assault as to raise a reasonable presumption that such acts prompted the assault. He may also prove such recent acts of provocation, under his denial of malice, without alleging them, specifically in his answer. "We cannot say from the answer as originally drawn, that the court has stricken out any allegation thereof which defendant is entitled to prove on the trial. If it should appear in proof that any of such' alleged acts of provocation were committed so recently before the assault as to render proof of them admissible (which is quite probable), such proof may be received under the answer in its present form. Hence the defendant is not injured by the striking out of portions of his answer, even though it should appear on the trial that facts are stated therein which it is compe
By the Gourt.— Order affirmed.