62 Wis. 367 | Wis. | 1885
The following opinion was filed November 25, 1884:
The sole question in this case is, Was the rule of damages which was laid down by the learned county court correct, in view of the facts disclosed on the trial?
The jury in effect found, in answer to questions submitted, that the plaintiff purchased a ticket for Oshkosh, which, of course, entitled him to passage te that place. Further, that
It is not entirely clear from the complaint whether the action is for a breach of contract, or for a violation of duty as common carrier, though we assumé that it is of the latter character. But it can make no essential difference as to the rule of damages upon the facts proven. Whatever damages the plaintiff can show he sustained, which were the direct and natural consequence of the injurious act of Conductor Sherman, these the plaintiff may recover. The learned counsel for the defendant says that the only natural and legitimate result of that act was to compel the plaintiff to
The same counsel further says the plaintiff might have protected himself from all loss or inconvenience arising from the fault or mistake of the first conductor at a trifling expense, and that he failed in a social duty by omitting to do. so. The jury found that he had sufficient money with him when on the second train to have paid his fare from Clinton-ville to Oshkosh. But was he under any legal obligation to pay the additional fare exacted? He had once paid for a ticket to Oshkosh, and claimed the right to ride to his destination. Probably most persons having the ability would, under like circumstances, pay the additional fare rather than submit to the inconvenience and delay of leaving the train at that hour and place. But, as we have said before, we think the plaintiff had the option either to pay or leave the train and resort to his legal remedy. There are men who, in social life and business matters, act upon the maxim, “Millions for defense, but not a cent for tribute;” in other words, men who stand upon their strict legal rights.
There is certainly a class of cases where the law imposes upon a party injured by another’s breach of contract or tort the duty of making reasonable exertions to render the injury as light as possible. Counsel have referred to authorities which affirm that rule of law. They have also cited cases which hold that a passenger cannot insist upon remaining on the train without paying fare, in order that force shall be used for his expulsion and then claim damages for the force thus used. But we have not been referred to a case analogous to this, which decides that it was the duty of the plaintiff to have paid the fare exacted and remained on
We feel it but just to observe that the conduct of Bartlett, the second conductor, was most considerate, fair, and honorable. For while insisting that the plaintiff must pay his fare to Oshkosh or leave the train, he, at the same time, told the plaintiff that if he did pay, on the arrival of the train at Oshkosh he would go with him to Conductor Sherman’s house, Avhich was only a short distance from the depot, and if Sherman said plaintiff was entitled to passage to Oshkosh he would refund the money exacted. Thus Mr. Bartlett proposed doing all in his power to make the matter right, while he enforced the rules of his company. His conduct in that behalf certainly deserves commendation.
When this case was here on the first appeal, enhanced damages were claimed because the plaintiff was compelled to leave the train at the Bear Creek station in the night, and was exposed to the chilly air, took cold, became sick, etc. It appeared, then, from the plaintiff’s own testimony, that before the train left Clintonville the second conductor demanded fare of him and told him he could not ride on the trip check'which he held, and that the plaintiff had ample opportunity to leave the train at Clintonville. It was in view of this testimony, and of the plaintiff’s refusal either to leave the train or pay his fare, that the remark was made that
There are many cases cited on the brief of counsel on both sides to sustain their respective positions. While we have examined them, we do not deem it necessary to comment on them here. They are all distinguishable from the case before us.
By the Court.— The judgment of the county court is reversed, and the cause is remanded for a new trial.
A motion for a rehearing was denied March 3, 1885. A motion was subsequently made by the respondent to have the judgment against it for costs in this court set off against or applied upon a similar judgment in its favor on the former appeal. The following opinion was filed April 28, 1885:
This is a motion to have the judgment for costs in favor of the plaintiff on the second appeal offset or applied on a judgment for costs in favor of the defendant company on a former appeal. It appears from the motion •papers that an execution has been issued on the last‘judgment, which has been returned wholly unsatisfied. We think the company is entitled to have the offset made. Both judgments are in this court and in the same cause, and it is but equitable and just under the circumstances that the costs in favor of one party should be offset against the costs in favor of the other party. Taylor v. Williams, 14 Wis. 155; Mohawk Bank v. Burrows, 6 Johns. Ch. 317; Porter
In the case at bar there was an assignment of the judgment by the plaintiff to his attorneys to secure them for their disbursements and advances made for his benefit in the action. But this cannot interfere to prevent the offset from being made. “ Where different claims arise in the course of the same suit, or in relation to the same matter, and it is. equitable and just that these equities should be arranged between the parties without reference to 'the solicitor’s or attorney’s lien, his lien being only the clear balance due to his client after all these equities are settled, such lien will not prevent the parties from having the mutual demands arranged by setoff as the equities between them shall require, without regard to the lien of the attorney or solicitor.” Waterman on Setoff, § 361. The above cases show that the lien of the attorney, or even an assignment of the judgment prior to a motion to have the setoff made, will not defeat the right to the setoff. Williams v. Taylor, supra; Marshall v. Cooper, supra; Levy v. Steinbach, supra. The reason is that the assignee and attorney stand in no better position than the judgment creditor himself, and are subject to the same equitable rights which existed in favor of the adverse party. This precise point was considered and decided by this court in the case of Gano v. C. & N. W. R'y Co. 60 Wis. 12. In that case the company moved to set off a judgment for costs in its favor against one obtained by the plaint
By the Oourt.— Motion granted.