Friemark v. Rosenkrans

• Decision Date: 23 February 1892
• Citation: 51 N.W. 557,81 Wis. 359
• Parties: FRIEMARK v. ROSENKRANS.
• Court: Wisconsin Supreme Court

81 Wis. 359

51 N.W. 557

FRIEMARK

v.ROSENKRANS.

Supreme Court of Wisconsin.

Feb. 23, 1892.

Appeal from superior court, Milwaukee county; F. L. GILSON, Judge.

Action by Joseph Friemark, an infant, by his next friend, against Edward M. Rosenkrans. Judgment for plaintiff. Defendant appeals. Affirmed.

The other facts fully appear in the following statement by PINNEY, J.:

This action was brought in justice's court by the plaintiff, an infant of the age of 14 years, by his next friend, against the defendant, for assault and battery, and he recovered $20 damages and $30.76 costs. The defendant appealed to the superior court of Milwaukee county, and in the notice of appeal entitled the case, “Joseph Friemark v. Edward M. Rosenkrans,” instead of “Joseph Friemark, an infant, by Michael Friemark, his next and nearest friend,” etc. The notice was signed, “E. M. Rosenkrans,” instead of “Edward M. Rosenkrans;” and it described the judgment as being for $20 and $24.25 costs, instead of $30.76, as was actually the case. In the superior court the plaintiff moved the court to dismiss the appeal upon the ground that the notice of appeal did not properly describe the parties to the action, nor the judgment rendered, from which the appeal was taken; but the motion was denied. At the trial in the superior court the plaintiff recovered $175 damages, with costs; and the defendant appeals to this court, and now insists, as the plaintiff did in the superior court, that the notice of appeal was fatally defective, and that that court was without jurisdiction. It appeared on the trial, in substance, that the plaintiff, with others, had been picking up fragments of building material in and around the defendant's building, then in process of construction, and was taking the same away in a wheelbarrow, when the defendant took possession of the wheelbarrow and detained it, and the boy escaped into the street. Quite an altercation had occurred between the defendant and other parties similarly engaged. After a few moments the defendant got a party acquainted with the boy to bring him to him, when, as he states, he took the boy by the hand, and sat on one of the wheelbarrows, holding him and thinking what to do, for about 10 minutes; that he thought of taking him to the police station, because so much had been taken away from the building that he did not know exactly what to do, and the other parties were all the while attacking him, and that he thought that he would scare the boy and let him go, and perhaps they would keep away; that he grabbed the boy by the hand, threw him partly over his knee, and applied a piece of wainscoting that he had in his hands, about three feet long, two and a half inches wide and seven-eighths of an inch thick, to the boy, about four or five times,--not as hard as he could strike; that it was not intended to strike him on any other place except on the seat of his pants. The testimony took a considerable range as to the extent and character of the injuries thus inflicted on the boy; but the defendant, according to his own statement, was clearly guilty of an unjustifiable assault and battery, the testimony not tending to show that it was committed in defense of his property. There is no contention that the damages awarded were excessive, and it expressly appears from the verdict that none but compensatory damages were awarded. Question was made as to the competency of the plaintiff as a witness, on the ground of defect of religious belief; but it clearly appears that the objection was not well taken, and, besides, the evidence given by the boy was in no proper sense essential to the recovery. During the trial it appears that the defendant's counsel offered in evidence the judgment of the court below, and during the argument was proceeding to state what the judgment was, when he was interrupted by the court. Defendant's counsel claimed that the court had admitted the record of the court below, to which the trial judge replied that, if admitted, it was error, and said: “Certainly the court did not have in mind the attempt to put before this jury findings of another court, where the evidence may have been entirely dissimilar. I have had occasion twice before to rule in similar cases where you have undertaken and have actually wrongfully informed the jury of what the verdict of another court was, and I must insist that you will not do it again. I said the record was a part of the evidence in this case without being introduced, so far as it was admissible in any way. Certainly the court at that time did not think of any such purpose as this, in introducing the record, or it would have been promptly ruled out.” Counsel for the plaintiff, in addressing the jury, stated, among other things, that, “if the veil that covers the private lives of some men were lifted, it would show a picture blacker than hell itself.” The counsel for the defendant objected and excepted to this remark. The trial judge said: “The court is of the opinion that the counsel is within the latitude of counsel, and it is for the counsel himself to make such remarks as his case may dictate, as long as he is within the latitude. As to the good or bad taste of the remarks, the court, of course, offers no special...