Fredrickson v. Kabat
| Decision Date | 06 April 1954 |
| Citation | 63 N.W.2d 756,266 Wis. 442 |
| Parties | FREDRICKSON, v. KABAT et al. |
| Court | Wisconsin Supreme Court |
The action is one to recover damages for personal injuries alleged to have been inflicted upon plaintiff by ten defendants in the course of an assault and battery upon him. It has been before the court already on motions reported in 1951, 260 Wis. 201, 50 N.W.2d 381, and 1953, 264 Wis. 545, 59 N.W.2d 484. Now it comes after trial on the merits. The action as to six defendants was dismissed by the trial court. The remaining four were found guilty of assault and battery by a jury which awarded plaintiff $9,000 in compensatory damages, and $1,500 in punitive damages. These four defendants have appealed.
Facts are stated in the opinion.
Johns, Roraff, Pappas & Flaherty, La Crosse, for appellants.
Hale, Skemp, Nietsch, Hanson & Schnurrer, La Crosse, for respondent.
Plaintiff Fredrickson was chairman of a 1949 New Year's Eve party held at the American Legion Clubhouse in La Crosse. The appellants-defendants, their wives, and some other friends attended the party in a group. At closing time defendant Kabat engaged in a dispute with another patron over the ownership of a hat and the argument reached a stage where plaintiff thought it best to put Kabat out of the club-house. He took hold of Kabat who did not resist and walked him out the door and onto the porch. The other members of Kabat's party followed them and testimony as to what happened on the porch conflicts but by the time when it becomes again undisputed Fredrickson's left arm had been twisted out of the shoulder socket and the bone below the joint completely broken off, and his left kneecap fractured. The arm will ultimately need amputation. The Fredrickson version of the occurrence is that when he released Kabat at the outer door Kabat turned to face him and at the same time Fredrickson was seized from behind by the two Kotnours, his arms drawn behind his back and the left one twisted upwards, back of his neck, while he was forced down to the floor with such violence that his kneecap was broken; that his son came to his rescue but that defendant Joe Kotnour dragged the son away by the throat and that defendant Opitz stepped in to aid Joe. Fredrickson's wife and the son, Richard, corroborated the plaintiff in all important respects. The appellants did not deny that Fredrickson sustained the injuries mentioned and, in the main, their testimony and that of their wives supports the theory of the defense that in some way which appellants can not explain, because none of them saw the initial cause or had any part in it, Fredrickson fell down and hurt himself.
The only questions submitted by the appellants for decision here are whether there is sufficient evidence in respect to each separate appellant to sustain the finding that he assaulted the respondent. Although this is a civil action it is founded upon an alleged assault and battery, and therefore the plaintiff must establish the offense by a clear and satisfactory preponderance of the evidence. Bursack v. Davis, 1929, 199 Wis. 115, 122, 225 N.W. 738; Peterson v. Lemke, 1915, 159 Wis. 353, 150 N.W. 481. Appellants quote statements made by Fredrickson upon adverse examination before trial and other statements he made soon after receiving his injury to show that at such times he was unable to name the persons whom he said assaulted him and that later, when he did identify them, his description of their activities differs from the parts he assigned to them in his testimony upon the trial. These discrepancies raise issues of credibility which are to be determined by the jury.
The testimony of the Fredricksons on the trial is clear, direct and positive and is entirely adequate to sustain the verdict unless it can be said that the inconsistent statements before trial have reduced its strength below the level of a clear and satisfactory preponderance of the evidence. The jury, however, was not confined to the testimony given by the plaintiff and his relatives. Defendants' own evidence gives plaintiff much corroboration. Ray Kotnour, who was found by the jury to have participated in the assault and battery by the use of physical violence, testified that as he came out onto the porch following Fredrickson and Kabat he saw Fredrickson falling to his left and backward and attempted to catch him and, standing behind Fredrickson, he put his right arm around Fredrickson and with his left hand grasped Fredrickson's left arm. His grip was insufficient to prevent the fall, Kotnour testified, and he then assisted Fredrickson to rise. Others of the Kabat faction testified that they saw Ray Kotnour bending over Fredrickson with his hands upon Fredrickson. They...
To continue reading
Request your trial
-
Grad v. Associated Bank
...effort to prevent the tortious act, is not sufficient to impose aiding and abetting liability.). ¶31 Grad cites Fredrickson v. Kabat, 266 Wis. 442, 446-47, 63 N.W.2d 756 (1954), for the proposition that a jury may infer intent to aid and abet based on "evidence that a person is present at t......
-
Winslow v. Brown
...whether Wisconsin recognizes liability for aiding and abetting a negligent act. The plaintiffs contend that Fredrickson v. Kabat, 266 Wis. 442, 446-47, 63 N.W.2d 756, 758-59 (1954), expressly recognizes the concept of aiding and abetting a tort. The defendants contend that Fredrickson is li......
-
Kuehn v. Kuehn
...203 Wis. 389, 232 N.W. 593; Lang v. Oudenhoven, 1934, 213 Wis. 666, 252 N.W. 167, correction of rule not noted; Fredrickson v. Kabat, 1954, 266 Wis. 442, 63 N.W.2d 756. It is to be noted in Bengston v. Estes, 1952, 260 Wis. 595, 51 N.W.2d 539, the use of the word 'clear' to qualify preponde......
-
Schneider v. Pautsch
...for these particular torts must only be supported by a clear and satisfactory preponderance of the evidence. Fredrickson v. Kabat, 266 Wis. 442, 445, 63 N.W.2d 756, 758 (1954).3 Koch claims prejudice because the social worker's report was not disclosed by the prosecution at his criminal tri......