59 Wis. 95 | Wis. | 1883
1. The learned and ingenious counsel for the defendant devoted a considerable portion of his argument to an attack on the rule which allows punitory damages to be awarded in any action of tort, and he maintained that this court should overrule all of the cases heretofore adjudicated by it in which such damages were allowed. To this argument it is a sufficient answer to repeat what was said of the rule allowing punitory damages by the late chief justice in Bass v. C. & N. W. R'y Co., 42 Wis., 654: “ The rule was adopted as long ago as 1854, in McWilliams v. Bragg, 3 Wis., 424, and has been repeatedly affirmed since. It is therefore too late to overturn it by judicial decision. That could well be done now by legislative enactment only.” This was said in 1877, since which time the rule has been often reaffirmed,—notably so in Eviston v. Cramer, 57 Wis., 570. Counsel says that in the latter case this court went far in the direction of. abrogating the rule. The statement is not warranted by anything there said or decided, and must have been made under an entire misapprehension of the case.
2. The only other ground assigned for a reversal of the judgment is that the damages assessed by the jury are excessive, and hence that the motion for a new trial should have been granted for that reason. It is manifest that the jury assessed punitory damages, for the sum assessed is much greater than mere compensatory damages. It is clear that a verdict for $2,000 damages, were the recow ry confined to mere compensatory damages, could not be ¡•nheld upon the evidence in the case. Punitory damages can only be properly awarded in an action for slander, when, it is made to appear that in speaking the slanderous word, the defendant
The testimony shows or tends to show that, at the time the slanderous words were spoken, the plaintiff was a merchant and postmaster in the town of Lisbon, Waukesha county, and the defendant was a wealthy land-owner in and resident of- the same town. They had known each other twenty-five or thirty years, and were on friendly but not intimate terms. The defendant was' inclined to be abusive and quarrelsome, and had many personal difficulties with others. In the fall of 1880, one Schroeder had 125 bushels of wheat in his granary in the same town of Lisbon. September 7th of that year he gave the defendant a bill of sale of fifty bushels thereof, designating it as “fifty bushels winter wheat.” The wheat intended to be conveyed was in the center of the granary, and was white Eussian wheat. The defendant received from Schroeder the key of the
We may pause here to observe that on these facts — the defendant not having taken actual possession of his wheat nor filed his bill of sale with the town clerk, and the plaintiff having no notice of the sale — the latter’s right under his purchase was paramount to that of defendant, and he had the right under his bill of sale to take any fifty bushels he chose of the 125' bushels in the granary. Besides, the wheat was taken by the plaintiff openly, and under a bona fide claim of right. Hence there is hot the slightest ground in law or reason for characterizing the act of removing the wheat as a larceny or theft. But to proceed with the narrative. On June 18, 1881, in the afternoon, the defendant was engaged in a heated discussion in front of the plaintiff’s store with the assessor of the town relative to the assessment by the latter of defendant’s property, when the plaintiff said to the assessor from the stoop of his store, “ Are you having a prayer meeting? ” And the assessor replied, “ I guess so.” Thereupon defendant turned around towards plaintiff and said to him, “You Gfod damned son of a bitch,” and started towards plaintiff. Plaintiff said, “ Then you are a bastard.” Defendant continued to advance to
To establish the express malice of the defendant in making these charges, the plaintiff proved that on January 1, 1881, the defendant, in the presence and hearing of three other persons, said that the plaintiff broke open a granary and stole his wheat, and used other vulgar and dirty language ; also that on May 2,1881, he told another person that plaintiff broke a lock off a granaiy and stole his wheat; and when, in November of that year, after this action was commenced, such person expressed his regret that defendant had said anything to him about the matter, defendant replied, “ That’s all right; I am going to prove that he stole the wheat.” Still further, it was proved that when defendant was on the way to Sussex (a village in Lisbon, in which plaintiff’s store was situated), on the afternoon of the same 18th of June, and shortly before the altercation between the parties occurred, he said in the presence of two persons, that he was going up to give the plaintiff a piece of his mind; that he had been using Richard Cooling mean, and he would go up and give him a piece of his mind. On the foregoing proofs, notwithstanding the circumstances under which the slanderous words were spoken, the jury were justified in finding the express malice of the defendant. It is very strong evidence of such malice — of the ill-will and
In Rogers v. Henry, 32 Wis., 327, which was also an action for slander, the judgment was reversed because the jury awarded excessive damages. The judgment went upon the ground that the evidence negatived any express malice on the part of the defendant, and hence that the jury were not authorized to award anything beyond compensatory damages. This case is much relied upon by counsel for defendant, yet it is manifest that it does not support the proposition that the damages in this’case are excessive. The cases elsewhere cited to this proposition all go upon the same ground; that is, the absence of express malice. Doubtless t.he court may properly interfere if the damages awarded are either so large or so small as to force the conviction that the jury have acted under the influence of perverted judgment. In the present case the jury awarded very liberal damages. But when it is considered that the defendant persisted for many months in falsely charging that the plaintiff had committed an infamous crime; that he repeated the.charge to many citizens; that he was evidently prompted by ill-will and bad intent towards the plaintiff; that the latter was engaged in a business in which public confidence in his honesty and integrity of character was absolutely essential to success; and that the defendant is a man of wealth, who could not be
After careful consideration of the whole case we are unable to find any sufficient ground for disturbing the judgment.
By the Ot)¡urt.— Judgment affirmed.