122 Wis. 251 | Wis. | 1904
The most obvious of the errors assigned is presented by an instruction to the jury to include as an element of damage to be compensated “loss of reputation.” Respondent’s counsel offers neither argument nor citation in support of the proposition that loss of reputation is an element of the general damages resulting from an assault, even when accompanied by sexual solicitation; indeed, seems to concede the contrary, but urges'that the instruction could not injure defendant, because there was no evidence of any loss of reputation. The conclusion is non sequitur. Instruction to the jury to make allowance for such an element was a direct invitation to them to draw on conjecture or imagination as to its existence in absence of any evidence, and for that reason alone would be erroneous, even if the element mentioned would be proper as special damages when supported by the 'proofs. Hickey v. C., M. & St. P. R. Co. 64 Wis. 649, 26 N. W. 112; Spencer v. C., M. & St. P. R. Co. 105 Wis. 311, 81 N. W. 407; Musbach v. Wis. Chair Co. 108 Wis. 57, 84 N. W. 36.
The general question whether injury to reputation is ever a legitimate element of damage in an action for assault is not so simple as counsel’s concession would seem to indicate, nor is it without authority, albeit somewhat conflicting. This
From this resume of authorities, especially those in Wisconsin, it is plain that injury to reputation is by no means a universal or necessary result of assault. This is so even when aggravated by the circumstance of solicitation of a chaste and reputable woman to unlawful sexual intercourse. ■Of course, such circumstance may well be presumed to arouse most poignant sense of humiliation and feeling of disgrace, and the latter is doubtless so uniformly an accompaniment as to be an element of the general damages recoverable, but, if the affair be entirely secret, as it was in this case, it is obvious that no derogation of the plaintiff from her standing in the community usually results. ITence the conclusion is irresistible that without direct allegation of such injury as special damage, supported by proof, there can ordinarily be no recovery for this element of damage in an action for assault. We are not prepared to say that there may not be cases where the assault, especially when associated with attempts upon the chastity of a woman of pure character and good reputation, under circumstances of publicity, may not affect her fair name and her standing in the community to her actual, nay, pecuniary, damage. The proneness of the human mind to suspicion is such that the mere fact of sexual attempt upon a woman may arouse suspicion of conduct or character on her part to have invited it with hope of success, and the fact that she is known to have been so solicited may derogate from the pre-existing belief in her virtue and decorum. We shall not decide in the present case whether that may, under special circumstances of both allegation and proof, ever be an element of special damage in an action for assault. That is not the situation here, for there is neither allegation nor proof of any such facts. The recovery permissible in this
Another error assigned is the insufficiency of the general verdict in this case, in the light of the instructions, to support a judgment. It is pointed out that here wrere three distinct and separate assaults and causes of action — one in November, one January 20th, and one January 23 d. The evidence as to each, while substantially that’ of the two parties, was different from that offered with reference to the others. Obviously, the jury might have believed that one or two of these assaults had been committed, but not all, and the individual members of the jury might well have differed in this respect. One juryman may have believed that all three assaults were committed, but that $250 was adequate allowance of damages for the whole, but excessive for any one; another that only the November assault was committed, but still that $250 was proper damages therefor; still other jurymen may have been convinced against the November assault, but believed in the existence of one of those in January; and yet all might have agreed that the plaintiff had suffered some assault at the hands of the defendant for which $250 should be awarded, and no unanimous agreement as to the existence of any one of the assaults or the damages for each. That they might have done this under, the charge of the court is apparent. They were instructed that plaintiff was entitled to recover if the jury found that the defendant did assault plaintiff either on November 15th, January 20th, or January 23d, “or at any one or two or more of these times.” Each of these separate and distinct causes of action might have been sued upon separately, in which case, of course, all of the jury must have agreed upon the facts necessary to a recovery and upon the amount of damages to be awarded for each act.
The question of the sufficiency of a mere general verdict in favor of the plaintiff in the presence of two or more distinct and separate causes of action has been the subject of consideration in many decided cases, and in the great majority of them it has been held that no judgment can be supported upon such a verdict; that it is the duty of the court to-ascertain the conclusion of the jury upon each cause of action, either by taking a separate verdict thereon or by such inquiry of the jury as to leave no doubt. Coffin v. Jones, 11 Pick. 45; Johnson v. Higgins, 53 Conn. 236, 241, 1 Atl. 616; Sayres v. Ward 3 N. J. Law, *1007; Cock v. Weatherby, 5 Smedes & M. (Miss.) 333; Bricker v. M. P. R. Co. 83 Mo. 391; Robinson v. Berkey, 100 Iowa, 136, 69 N. W. 434; Union P. R. Co. v. Jones, 49 Fed. 343; 2 Thompson, Trials, § 2640; 22 Ency. PL & Pr. 849. The exact subject has never been squarely decided -in Wisconsin. The rule has been laid down that a general verdict upon a single cause of. action will be presumed to have found upon all material issues, in the absence of showing to the contrary. Krause v. Cutting, 32 Wis. 687. Again, it has been held that a general verdict upon several counts, any one of which is bad, cannot sustain a judgment unless it affirmatively appear that the bad counts were excluded from consideration of the jury. Dewey v. Fifield, 2 Wis. 74, 81; Lacher v. Will, 6 Wis. 285; Leitch v. C. & N. W. R. Co. 93 Wis. 79, 67 N. W. 21. This rulé is put upon the same ground as the decision in Schofield v.
Error is also assigned because the court, in charging the jury, assumed and informed them that each of the assaults was characterized by kisses inflicted by defendant upon plaintiff, while as a matter of fact there was no claim that the last included such act. This doubtless was an oversight by the court, and possibly might have prejudicially affected the amount of damages. -As a new trial must be ordered in any event, we need do no more than express the expectation that a repetition of the mistake will not occur.
Extended argument is made in favor of the contention that the verdict is excessive, but, inasmuch as there was no motion to set aside the verdict and for a new trial prior to judgment, and as the order denying motion for new trial made after judgment has not been brought up by appeal, we cannot consider any question of insufficiency of evidence to support the
By the Gourt. — Judgment reversed, and cause remanded for new trial.