Corcoran v. Harran

• Decision Date: 10 May 1882
• Citation: 12 N.W. 468,55 Wis. 120
• Parties: CORCORAN v. HARRAN.
• Court: Wisconsin Supreme Court

55 Wis. 120

12 N.W. 468

CORCORAN

v.HARRAN.

Supreme Court of Wisconsin.

Filed May 10, 1882.

Appeal from circuit court, Kewaunee county.

This is an action for damages for injuries to the plaintiff personally, by reason of an alleged assault and battery by the defendant. Upon issue joined and trial had in justice court, the plaintiff recovered judgment of $100 damages and costs. Upon the trial in the circuit court, on the appeal, the jury returned a verdict of $200 damages in favor of the plaintiff. The circuit court granted the defendant's motion for a new trial, unless the plaintiff would reduce the amount of the verdict to $100. Accordingly the plaintiff remitted $100 of the verdict, and the court thereupon denied the motion for a new trial, and gave judgment in favor of the plaintiff and against the defendant for $100 damages and costs, from which judgment the defendant brings this appeal.Tracy & Bailey, for respondent.

Hudd & Wigman, for appellant.

CASSODAY, J.

1. It is urged as error that the court, among other things, charged the jury that “personal abuse, which may have had something to do with inducing and bringing upon another an assault, may be considered by a jury in mitigation of damages. But a man commencing an assault and battery under such circumstances is liable for the actual damages which result from such assault. The abusing words are no justification for the blows, and may be considered, as I have said, in mitigation of damages, but not actual damages.” This portion of the charge is clearly within the rule recognized and followed in Fenelon v. Butts, 10 N. W. REP. 501, (S. C. 4 W. L. N. 93,) where it was held, that “(6) it is the settled law of this state that, while proof of defendant's good faith is admissible to mitigate punitory damages, it cannot be considered to mitigate compensatory damages, including those allowed for injury to the feelings.”

2. It is also urged as error that the court, among other things, charged the jury that “in this case the plaintiff must recover. The only question which you have further to consider is, how much, under the circumstances, shall it be? He is entitled to recover,-- First, the actual damage which the evidence shows he has sustained for his loss of time, and the pain and sufferings which were the result of such assault; and, second, in addition to such actual damages, such sum as in your judgment is reasonable and just by way of punishment, as an example to the defendant and others, to deter him and others from committing such act.” Had this portion of the charge been excepted to on the ground that the court directed the jury to give the plaintiff punitive damages in addition to actual damages, we probably would have sustained it, but no such exception was taken. The language used in the exception is this: “The defendant excepts to so much of the charge as reads, [here quoting the same,] and each and every part thereof, because it is very improper in not distinguishing pain and suffering from the actual damage; and in the effect of the same, this further damage, viz., pain and suffering, defendant could not have the benefit of the mitigating circumstances if any existed.” So far as this exception is general in its terms it must be disregarded, for the simple reason that the portion of the charge quoted which relates to actual damages was substantially correct, and it is well settled that a general exception to a portion of a charge embracing more than one proposition is of no avail on review if any one of the propositions is correct. Butler v. Carns, 37 Wis. 61;Sabine v. Fisher, 37 Wis. 376;Nisbet v. Gill, 38 Wis. 657. But this exception is based wholly on the ground that the court failed to distinguish pain and suffering from actual damage, and thereby prevented the defendant from having the benefit of reducing the amount of the damages arising from pain and suffering by mitigating circumstances. But that is the very question determined adversely to the defendant in Fenelon v. Butts, supra. It is there held that they are not distinguishable. We must, therefore, hold that where an exception to a portion of a charge expressly states the ground upon which it is made, it must be treated as a special exception upon the ground stated; and where such exception is stated to be upon one ground which cannot be sustained, it will not be enlarged and extended so as to serve as an exception upon another and different ground which might have been sustained. Miles v. Ogden, ante, 81.

Where an exception is to a portion of a charge quoted, and to each and every part thereof, upon a particular ground specified, it will be held inoperative except as to the ground particularly specified. Yates v. Bachley, 33 Wis. 185.

3. The same observations are applicable to the third exception to a portion of the charge, and particularly to the fourth exception to a portion of the charge, which may have been subject to the objection of directing punitive damages in addition to compensatory damages, had the same been excepted to on that ground. Each of these two portions of the charge may each be regarded as somewhat general in its terms, but we do not think that either is obnoxious to the criticism that it gave the jury liberty to find a verdict according to their own notions of right and wrong, regardless of the evidence in the case. On the contrary, we think the jury were bound by their oaths to regard what was said to them by the court in his charge as having reference only to the case, and the evidence given therein on the trial before them. Certainly, if the defendant desired more definite instructions, he should have so requested; and, not having done so, he cannot be heard to complain without exception on the ground that the portion of the charge given was indefinite and uncertain. Trowbridge v. Sickler, 11 N. W. REP. 581; S. C. W. L. N. 221; Stilling v. Town of Thorp, 4 W. L. N. 254; S. C. 11 N. W. REP. 906. It is true, as stated by counsel, that the court nowhere told the jury that punitive damages might be wholly defeated; but it is also true that the court was not requested so to charge, and hence, for the reasons given, such omission is not ground for reversal.

4. The court had charged the jury that “the fact that fines have been imposed, and he [the defendant] has been punished by the state, may be taken into consideration by the jury in mitigation of the damages;” and counsel urge that the portion of the charge respecting punitive damages left it doubtful where the reduction would come in for fines and punishment already had for the same offence. But, as already indicated, the best method of preventing the jury from being misled by a doubtful portion of a charge is to request an instruction upon the subject which is not doubtful. Besides, it has been held by courts entitled to great respect that “the imposition of a fine in a criminal proceeding for assault and battery will not bar or mitigate the party's liability to exemplary damages in a civil suit for the same act.” Hoodley v. Watson, 45 Vt. 289;Cook v. Ellis, 6 Hill, 466;McWilliams v. Bragg, 3 Wis. 424;Brown v. Swineford, 44 Wis. 282. This ruling, however, is merely suggested, as the question is not necessarily before us for consideration.

5. Should the judgment be reversed because the plaintiff, on the defendant's motion for a new trial for excessive damages, was allowed to remit $100 from the amount of the verdict, and have judgment for the balance, with costs? In urging that the court had no such power counsel cite, among other cases, Potter v. Railway, 22 Wis. 619;Goodno v. Oshkosh, 28 Wis. 306;Nudd v. Wells, 11 Wis. 415. In Potter v. Railway the trial court refused to set aside the verdict, and this court was asked to allow the plaintiff to remit whatever should be deemed an excess of damages, but it declined to exercise any such power, and sent the cause back for a new trial with certain advisory remarks. The same course was followed in Goodno v. Oshkosh. See, also, Bass v. Railway, 39 Wis. 636;Page v. Sumpter, 11 N. W. REP. 60;Cassin v. Delany, 38 N. Y. 178. But that question is not in this case, for here the deduction was allowed by the trial court. The right to allow such deduction in cases where the amount could be readily ascertained from the evidence with certainty, would not, we presume, be questioned; but whether the power exists in actions of tort, where the amount which should be deducted cannot be ascertained with any degree of certainty, is a question...