152 Wis. 459 | Wis. | 1913
Action for an assault alleged to have been committed upon tiie plaintiff by the defendant. The answer was a general denial. At the close of the testimony defendant asked leave to amend his answer by pleading the substance of the matters testified to by him. The court allowed the amendment, but, as plaintiff claimed surprise, only upon terms of a continuance and costs. Thereupon the defendant withdrew his amendment and the trial proceeded. Plaintiff testified, in substance, that she entered the store of the defendant about 8 o’clock on the evening in question, as she had often done before, talked for some time with one Nellie. Bloor and the clerk, Rose Miller, after which the two girls went out; that the defendant then came up to the front of the. store, looked out of the door, through the window thereof, and then asked her to come to the rear end of the store to have some candy. She told him she did not care for any, but he said she should come and have some anyway; that she then walked to the back end of the store and stopped beside the stove. The defendant went back of the counter and said she should step back there and see what kind she wanted. She told him any kind would do, but he said he had several kinds and told her to step back and see. Thereupon she stepped back of the counter to look at the candy; that the defendant then put his right arm around her and grabbed her right breast, causing her a little pain, and that he tried to get his arm down, so that he would come on the outside and have her on the inside; that she was perhaps dragged a few feet toward the rear of the store.
Tbe trial court directed tbe jury to return a verdict for the plaintiff, and submitted to tbem only tbe question of damages. Such direction was correct only upon tbe theory that defendant’s acts, as testified to by bim, constituted an assault It is manifest tbat if they did not, there was evidence which, if believed, conclusively negatived the charge of an assault. Respondent claims tbe acts testified to by tbe defendant could not be shown under a general denial, but only under a plea of justification, and cites Atkinson v. Harran, 68 Wis. 405, 32 N. W. 756, and Yeska v. Swendrzynski, 133 Wis. 475, 113 N. W. 959. It is true those cases are authority for tbe rule tbat in a civil action for assault and battery evidence of justification is not admissible under a mere general denial. But they do not bold tbat under a general denial evidence showing tbat no assault in fact took place is inadmissible. Tbat is tbe very issue raised by a general denial, namely, Did tbe defendant assault tbe plaintiff % An assault is an unlawful attempt, •coupled witb the apparent or real present ability, to do bodily
This disposition of the case renders it unnecessary to discuss a number of other assignments of error. We cannot forbear, however, to express our unqualified disapproval of the persistent efforts of plaintiff’s counsel to inject into the case highly prejudicial matter against the repeated rulings of the trial court Such conduct alone might necessitate the reversal of a case. Barton v. Bruley, 119 Wis. 326, 96 N. W. 815. When an attorney has obtained a ruling from the trial court in a form which fairly raises a question as to the admissibility of the evidence sought to be introduced, courtesy to the court should forbid a wilful repetition of the effort
.. By the Court. — Judgment reversed, and cause remanded for further proceedings according to law.