Summary
ERROR to the Circuit Court for Walworth County.
This was au actiou by Peter J. Martin and Barbara, bis wife, against Barnes, for an assault and battery upon tbe wife. Tbe answer was, 1. A general denial. 2. just before tbe time when, &c., said Barbara assaulted tbe defendant with a knife, and would have wounded him therewith, if be bad not immediately defended himself, wherefore be did defend himself, unavoidably bruising her a little, but doing her no unnecessary injury. 3. That at tbe time when, &c., tbe defendant was possessed of a certain close, and of a certain cow then being therein, and that said Barbara, with force and arms, broke into said close, and endeavored to take away said cow, forcibly, with a strong band, and would have so taken tbe same if be had not defended bis possession thereof; wherefore be did defend tbe same, and resist tbe endeavor of tbe said Barbara, and that if any injury then and there happened to her, the same happened of her own wrong, &c. — Tbe action was brought in Racine county, and was removed, on application of tbe defendant, to tbe circuit court for Walworth county. On tbe trial, the plaintiffs, for tbe purpose of showing the defendant’s wealth, offered in evidence the affidavit made by him for the change of venue, which contained statements as to certain property owned by him in Racine county, and as to litigations concerning the same, in which he had for some years been involved with citizens of that county, in consequence of which he alleged that that he could not have a fair trial therein. They also offered evidence tending to show, that in consequence of the injuries inflicted upon the female plaintiff by the defendant, she was obliged, for some weeks, to have medical attendance, and aid about her household work, &c. The defendant objected to each of these offers, but the court overruled the objections. The plaintiff Peter was admitted as a witness, against the objection of the defendants. The facts proved are sufficiently stated in the opinion of the court.
The defendant requested the court to instruct the jury as follows: 1. That if they should find that the cow was trespassing upon the defendant’s lot at the time he took possession of her, then such possession was lawful; and the plaintiff Barbara had no right to take the cow out of the defendant’s possession by force. 2. That if the j ury should find that the cow was upon the defendant’s lot at the time he took possession of her, then such possession was lawful under the law relating to estrays, and the plaintiff Barbara had no right to take the cow out of the possession of the defendant by force. 8. That the plaintiff Barbara had no right to take the cow out of the possession of the defendant by force. 4. That if the jury should find that the plaintiff Barbara intended by her acts, in order to obtain the cow, to commit violence upon, or menaced violence to, the defendant, with the butcher knife, then her acts on coming up to the defendant on the occasion referred to in the case, with the intention of executing her purpose, amounted to an assault first upon the defendant. 5. That if the jury should find that the plaintiff Barbara entered the defendant’s lot by force or contrary to his direction, and intended by her acts to take the cow out of his possession by force, then he was justified in defending his' possession of the lot and cow by force, provided the force was proportioned to the resistance. 6. That the j ury had no right to find punitive or exemplary damages, unless they first found that the acts of the defendant in resisting, the taking of the cow from him were governed by wanton or malicious motives, and were without apparent cause. 7. That if the jury should find that the plaintiff Peter J. Martin instructed the plaintiff Barbara not to cut the cow loose, then neither Barbara nor the plaintiff for her could claim any more protection or right on her account than a stranger who should have been attempting to take forcible possession of the cow, could claim.
The court gave the first instruction asked, after modifying it by inserting the word “ enclosed” before the word “ lot,” and adding at the end “ whether his possession was lawful or unlawful.” The court also gave the second instruction, with the addition “that the defendant must have clearly notified or sufficiently indicated to the owners on what ground he took up the cow, and it is left to the jury to say whether he notified the owner that.be did take up the cow as an estray.” The third, fifth and seventh instructions were given, and the fourth and sixth refused.
The court further charged the jury that if they found for the plaintiffs they might give punitory damages against the defendant; and that if they found for the plaintiffs they might compensate them for mortification.and injury of feelings, loss of time, and standing in society.
Yerdict for the plaintiffs for $2000. Motion for a new trial denied.
1. The complaint does not allege special damages, as for employing assistance or nursing Barbara while it is claimed she was sick, for loss of service, medical attendance, &c. Hence the objection to the evidence relating to those subjects was well taken. Slack vs. Brown, 13 Wend., 390 ; Strang vs. Whitehead, 12 Wend., 64; Bogert vs. Buclchalter, 2 Barb., 525 ; Birchard vs. Booth, 4 Wis., 67. 2. The defendant’s affidavit should not have been admitted in evidence. (1) It was offered and given in evidence entire, but only a part of it was competent to prove the fact for which it was offered. Most of it, though incompetent, was calculated to prejudice the minds of the jury against the defendants. (2) It was inadmissible for the purpose for which it was offered. Myers vs. Malcolm, 6 Hill, 292, 293, 296 and note (b); Osgood vs. Manhattan Go., 3 Cow., 612, 621; Strang vs. Whitehead, 12 Wend., 64; Penfieldvs. Garpender, 13 Johns., 350; Irvine vs. Gook, 15 id., 239 ; Haswell vs. Bussing, 10 id., 128. 3. The husband, Peter, was incompetent as a witness. Pillow vs. Bushnell, 5 Barb. (S. C.), 156; 1 Greenl. Ev., §§ 334 — 342. 4. As to the instructions to the jury, the court erred, (1.) In inserting the word “ enclosed” in the first instruction asked by the defendant. (2.) In the addition made to the second proposition. E S., chap. 43, sec. 2; Harrison vs. Broion, 5 Wis., 27. (3.) In refusing the fourth instruction asked. Hays vs. The People, 1 Hill, 351. (4.) In refusing the sixth instruction. Me Williams vs. Bragg, 3 Wis., 424, 429, 431. (5.) In the charge as to punitive damages. Scribner vs. Beach, 4Denio, 448; Blake vs. Jerome, 14 Johns., 406 ; Heermance vs. Vernoy, 6 id., 5. (6.) In charging the jury that if they found for the plaintiffs they “ might compensate them for mortification and injury of feelings, loss of time,' and standing in society." There is no foundation laid in the corn-plaint for suck damages. Moreover in such an action bj husband and wife, if the jury find for the plaintiffs, they can-recover only for the injury and suffering of the wife, and not for loss of service or expense to the husband. Thomas & wife vs. Winchester, 2 Seld., 397, 407 ; Lewis wife vs. Bab-coc/c, 18 Johns., 443 ; 1 Chitty’s PL, 64. 5. The damages are excessive, and are such as to evince passion, partiality or prejudice on the part of the jury. A new trial should have been granted. McConnell vs. Hampton, 12 Johns., 234.
1. The affidavit of Barnes was properly admitted in evidence, to show his wealth. (1.) In an action for a malicious injury to the person, the jury'may give exemplary or vindictive damages. 13 How. (U. S.), 363; 4 Duer, 247; 5 Watts, 375; 3 Wis., 424 ; 4 id., 67. (2.) In giving such damages, a jury may take into consideration the wealth of the defendant, and testimony upon that point is admissible. 4 Duer, 247; 5 Watts, 275; 4 Wis., 67. (3.) An admission in an action is conclusive in that proceeding, upon the party making it. 2 Caines’ R., 155. 2. Peter J. Martin had a right, under our statute, to testify in his own behalf; and the fact that Barbara, his wife, was a co-plaintiff could not affect this right. See R. S. p. 817, sec. 1, and p. 818, sec. 2. 3. The fourth instruction asked by the defendant, was properly refused, for the reason that it required the judge to charge the jury that the acts of the plaintiff Barbara constituted aji assault, instead of asking the judge to charge the jury as to what constituted in law an assault, and then leaving it to the jury to determine whether the acts of Barbara were or were not an assault. The fifth instruction, which was given by the court, contains the correct law relative to the rights of the defendant. 4. The sixth instruction was also properly refused. Damages were sought not for the defendant’s acts “in resisting the taking of the cow,” but for his acts in assaulting and beating the plaintiff Barbara. 5. The court properly charged the jury that “ if they found for the plaintiff they might give punitory damages against- the defendant” 3 Johns., 56; 3 Scam., 373 ; 6 Hill, 466; 5 Watts, 375 ; 2 Gilman, 432; 3 Wis., 424; 13 How. (U. S.), 363. 6. The last instruction given was correct. In all actions for injuries to person or reputation, a jury, in estimating the of damages, may take into consideration the loss of plaintiff’s time; and where punitive damages are allowable, may also take into consideration the injury to feelings and public disgrace, affecting plaintiff’s standing in society, occasioned by the infliction of the wrong. 2 Greenl. on Ev., § 267; 43 Maine, 163.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
