Baker v. Onsrud

• Decision Date: 12 April 1938
• Citation: 278 N.W. 870,227 Wis. 450
• Parties: BAKER v. ONSRUD et al.
• Court: Wisconsin Supreme Court

227 Wis. 450

278 N.W. 870

BAKER

v.ONSRUD et al.

Supreme Court of Wisconsin.

April 12, 1938.

Appeal from a part of an order of the Circuit Court for Dane County; August C. Hoppmann, Judge.

Appeal dismissed.

The action was commenced on September 16, 1936, by the plaintiff, Walter N. Baker, against the defendants, Lawrence Onsrud and Lewellyn Onsrud, to recover damages asserted to have been sustained as a result of assaults and batteries committed upon him. The defendant Lawrence Onsrud denied that he assaulted the plaintiff maliciously or without cause or provocation, and counterclaimed for damages asserted to have been sustained by him as a result of an assault and battery committed upon him by the plaintiff. The defendant Lewellyn Onsrud denied that he assaulted the plaintiff. Trial was had to the court and a jury. The jury, by its special verdict, in substance, found: (1) That the actual fight between the plaintiff and the defendant Lawrence Onsrud was started by the latter; (2) that the damages sustained by the plaintiff as a result of the assault committed upon him by the defendant Lawrence Onsrud amounted to $500; (3) that the plaintiff had committed an assault and battery upon the defendant Lawrence Onsrud a short time prior to the actual fight; (4) that the damages sustained by the defendant Lawrence Onsrud as a result of that assault and battery amounted to $1; and (5) that the defendant Lewellyn Onsrud did not assault the plaintiff. Upon the coming in of the verdict, the plaintiff moved for judgment against Lawrence Onsrud on the verdict as rendered, for the sum of $499. The defendant Lawrence Onsrud moved the court to increase the amount of damages found by the jury to have been sustained by him, to decrease the amount of the damages found by the jury to have been sustained by the plaintiff, because it was excessive and not supported by the evidence, and, in the alternative, for a new trial. The defendant Lewellyn Onsrud moved for judgment dismissing the complaint as to him, and for his costs and disbursements. The court granted the motion of the defendant Lewellyn Onsrud. The court denied the motion of the defendant Lawrence Onsrud to increase the damages which the jury found he had sustained. The court concluded that the amount of the damages which the jury found the plaintiff had sustained was excessive and not warranted by the evidence, and “that the lowest amount which a fair, intelligent and unbiased jury, rightly understanding the case, would probably assess is $250, and that the highest amount which they would properly assess on the evidence would be $350.” The court ordered that a new trial be granted, unless the plaintiff should elect to take judgment for $250, or unless the defendant Lawrence Onsrud should elect to permit judgment to be entered against him for $350; both parties to serve and file their elections within ten days thereafter. The plaintiff failed to elect to take judgment for $250. The defendant Lawrence Onsrud elected to permit judgment to be entered against him for $350. No judgment, however, was entered in favor of the plaintiff and against the defendant Lawrence Onsrud upon the filing of the latter's election to permit judgment to be entered against him. From so much of the order as granted a new trial unless the plaintiff should elect to take judgment for $250, or unless the defendant Lawrence Onsrud should elect to permit judgment to be entered against him for $350, entered November 3, 1937, the plaintiff appealed.Darrell MacIntyre and J. Philip Koberstein, both of Madison, for appellant.

Alvin M. Loverud, of Stoughton, for respondents.

NELSON, Justice.

[1] Upon the motions made, after the coming in of the verdict, the court was of the opinion that the amount of the damages which the jury found the plaintiff had sustained as a result of the assault and battery committed upon him by the defendant Lawrence Onsrud was excessive and was not sustained by the evidence. The court thereupon, in pursuance of...