Shay v. Thompson
| Decision Date | 19 February 1884 |
| Citation | 18 N.W. 473,59 Wis. 540 |
| Parties | SHAY v. THOMPSON. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Grant county.
A. W. & W. E. Bell, for respondent, Patrick Shay.
Bushnell & Watkins, for appellant, Greenberry Thompson.
The parties own adjoining farms and had a personal difficulty concerning the sufficiency of the line fence between their respective farms. On a certain Sunday in August, 1882, they met, quarreled about the fence, and fought. Although they were both old men, it is but just to say they fought with great spirit and brutality. The defendant is the larger and probably the stronger man, and had the best of the fight. He gouged both eyes of the plaintiff, and it is claimed that the sight of one of them is permanently impaired. This action is to recover damages for such injuries. A trial in the circuit court resulted in a verdict and judgment for the plaintiff for $500 damages. The court denied a motion for a new trial. The defendant appeals from the judgment.
The only errors alleged are upon the charge to the jury, and the refusal of the court to give the jury certain instructions proposed on behalf of defendant. The testimony is conflicting as to the circumstances of the affray. We think the jury would have been justified in finding therefrom, either (1) the plaintiff commenced the affray; or (2) the defendant commenced it; or (3) the parties voluntarily fought; also, (4) if plaintiff commenced it, the defendant used unreasonable and unnecessary force and violence to repel it; and (5) that the injuries inflicted by the defendant upon the person of the plaintiff were cruel, brutal, and inhuman, and were maliciously and vindictively inflicted. The charge of the learned circuit judge covers these various and conflicting aspects of the case presented by the testimony. It is brief and terse, and we think is an accurate statement of the law of the case. The jury were instructed that if the plaintiff was the aggressor, the defendant might lawfully resist the attack by the use of all the force necessary to defend himself against it, but if he exceeded the limits of lawful self-defense he was liable for the injuries caused by such excess. They were also properly instructed as to the elements of compensatory damages in such cases and the rule of exemplary damages. That the testimony tended to prove a state of facts, which if found by the jury authorized them to award exemplary damages, we cannot doubt.
The jury were also instructed as follows: ...
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Ickenroth v. St. Louis Transit Co.
......and Eng. Enc. of. Law (2 Ed.), p. 24; 19 Am. and Eng. Enc. of Law (2 Ed.), p. 624; 12 Am. and Eng. Enc. of Law (2 Ed.), p. 24; Shay v. Thompson, 59 Wis. 540, 48 Am. Rep. 538; Bofastain v. Grazide, 115 Cal. 425, 47 P. 118. (2) The third. instruction directs the jury that ......
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Gray v. McDonald
...by mutual consent, in anger, fight together, each is liable to the other for actual damages inflicted. Shay v. Thompson, 48 Am. Rep. 538; 59 Wis. 540; Cooley Torts [1 Ed.] 159 and 163; Dole v. Erskine, 35 N.H. 503. (3) One who brings on a difficulty, with the purpose of killing his adversar......
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Meints v. Huntington
...... which no man can divest himself, and of which any. divestiture is null.'. . . . See,. also, Bell v. Hensley, 48 N.C. 131; Shay v. Thompson, 59 Wis. 540, 18 N.W. 473, 48 Am.Rep. 538;. Adams v. Waggoner, 33 Ind. 531, 5 Am.Rep. 230;. Barholt v. Wright, 45 Ohio St. 141, 12 ......
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Gutzman v. Clancy
...force, have become guilty of an assault on the other. This ruling is claimed to contravene the doctrine of Shay v. Thompson, 59 Wis. 540, 18 N. W. 473, 48 Am. Rep. 538, and Pelton v. Powell, 96 Wis. 473, 71 N. W. 887. If so, however, that of itself could not require reversal, for the jury h......