64 Wis. 42 | Wis. | 1885
After a careful examination of the bill of exceptions, we fail to discover any error in this case which should reverse the judgment. There is much conflict in the testimony, and it is not easy to get at the real facts. Put the evidence as given on both sides, and the law applicable to it, seem to have been fairly submitted by the court below in its charge.
It is objected on the part of the defendants that improper
Another error assigned is that it was improper to permit Dr. Confer to testify, against defendants’ objection, as to the tendency or danger of wounds by bites in general, instead of confining the testimony to the actual danger of this wound, and the extent of the injury it had caused. The doctor had seen and examined this wound on plaintiff’s thumb, and he was asked to state, from his experience and
"We are unable to see any objection to the ruling of „ the court in allowing the witnesses Estel and Keel to testify to what they did, when called in rebuttal.
As to the rule of liability where several persons unite in an act which constitutes a wrong to another, intending at the time to commit it, or doing -it under circumstances which fairly show them to be joint tort-feasors, the court gave the law substantially as laid down in Brown v. Perkins, 1 Allen, 89, which was cited with approval by this court in Hilmes v. Stroebel, 59 Wis. 74. That is to say, the court instructed that “ any person who is present at the commission of .an assault, or an assault and battery, by one person upon another, encouraging or inciting the same by words, gestures, looks, or signs, or wiho in any manner or by any means countenances or approves the same, is in law deemed an aider and abettor, and liable as principal; and evidence that a person is present at the commission of an assault and battery, without disapproving or opposing it, is evidence from which, in connection with other circumstances, the jury may infer that he assented thereto, and lent to it his countenance and 'approval, and was thereby aiding and abetting the same. But it is to be borne in mind that mere presence at the commission of an assault and battery or other wrongful act done, does not render a person liable as a participator therein.” The learned counsel insists that this charge should have been qualified in order to make - it
The instruction was surely applicable to one phase of the case. If there was an intent and purpose on the part of Henry Whitehead, and those with him, to go to the .schoolhouse and get up a fight with persons there, it was not necessary that he should actually aid his co-defendant in the assault and battery of the plaintiff. He would be equally liable in such a case as though he had committed, the battery himself. But the court, in effect, further said, if there was no unlawful combination or purpose of that kind, the mere presence of Henry Whitehead, without doing something, by word or act or gesture, denoting his countenance or approval, would not render him liable. In view of much of the testimony introduced on the trial, the charge on this point is unobjectionable. It was surely as favorable to the defendants as the law would justify. There was enough in the case to authorize the jury in finding,-— as they probably did under the charge,— that Henry. Whitehead, and others with him, were engaged in a common unlawful act, and that whatever was done in the execution of their purpose had his full sanction.
A further error is assigned, which is that this is not a case for exemplary damages. This point seems to us so-plainly untenable that it requires no comment.
The defendants put in a joint answer, consisting (1) of the general denial; (2) that Levi Whitehead admits he struck plaintiff, but alleges that plaintiff first assaulted and .struck him, and that he used only such force as was reasonable
On the whole record we think the judgment is correct, and must be affirmed.
By the Court.— Judgment affirmed.