Gutzman v. Clancy

• Decision Date: 19 May 1902
• Citation: 114 Wis. 589,90 N.W. 1081
• Parties: GUTZMAN v. CLANCY.
• Court: Wisconsin Supreme Court

114 Wis. 589

90 N.W. 1081

GUTZMAN

v.CLANCY.

Supreme Court of Wisconsin.

May 19, 1902.

Appeal from circuit court, Winnebago county; Geo. W. Burnell, Judge.

Action for assault and battery by Herman Gutzman against P. B. Clancy. From a judgment for plaintiff, defendant appeals. Reversed.

The objection made to the instructions urged to be erroneous, as inapplicable, was that such instructions were contrary to the law and the evidence.

Plaintiff was janitor of a certain building in Oshkosh, and defendant was one of a firm renting one of the stores contained therein. Some controversy arising as to the proper place for doing work in repair of sewers, and words and epithets passing between the parties, a personal encounter took place. Each charged the other with being the aggressor, and the defendant especially charged that the plaintiff, even if not guilty of the first assault, was guilty of using more force than was necessary in repelling the assault, thereby causing the defendant injury, for which he counterclaimed. As a result of the trial, the jury found a special verdict as follows: (1) Defendant committed the first assault; (2) party first assaulted did not use more force than was reasonably necessary in repelling the assault; (3) assess plaintiff's damages at $350; (4) if the defendant has judgment, he is not entitled to any damages on his counterclaim. Motion for a new trial was overruled, and judgment for plaintiff for the amount of damages specified in the verdict was entered, from which the defendant appeals.Thompson, Harshaw & Thompson, for appellant.

Barbers & Beglinger, for respondent.

DODGE, J. (after stating the facts).

This is a plain case of a debate commencing in words, and terminating vi et armis; the one phase presenting about as much of appeal to pure reason as the other. If each party had been satisfied to merely enforce his arguments by words upon the ear of the other, he might have claimed victory without peril of appeal and reversal; but, when he sought to impress his logic upon the nose and eyes of his opponent, he brought the discussion within the arbitrament of the courts. And after all, the really important question--where the sewer leaked--will not be settled nearly so conclusively as it might have been by a few minutes' diligent use of a spade. But however unworthy of intelligent beings the whole proceeding may have been, the courts, being invoked, must treat the questions presented with the gravity due to more worthy subjects of litigation. The assignments of error are numerous; the subjects of debate, much more so; but many of them are either so immaterial to the result, or so without proper objection and exception, as not to justify examination or decision. We proceed to consider the more important.

Error is assigned upon a ruling that the jury could not, under any finding of the facts, make an award of damages to both parties, although the one first assaulted might, by excessive 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 have negatived the existence of facts to warrant any award to defendant by finding not only that he commenced the affray, but also that plaintiff did not use any unnecessary or excessive force. Although the question may not affect the result of this appeal, it will, however, still be an important one in case the parties persist further in this litigation, and the duty to decide it seems to be imposed on us. That, in the course of the same fracas, one party at one time, and his opponent at another, may be guilty of assault, so that each may be entitled to recover damages, seems to be entirely settled by the authorities. Dole v. Erskine, 35 N. H. 503;Darling v. Williams, 35 Ohio St. 58;Barholt v. Wright, 45 Ohio St. 177, 181, 12 N. E. 185, 4 Am. St. Rep. 535; Shay v. Thompson, supra; Cooley, Torts, (2d Ed.) p. 190. The original aggressor continues such so long as the other restrains himself within the bounds of defense, but, when the latter exceeds those bounds by using more than necessary force, he thereupon becomes aggressor, and liable for such damage as he thereby inflicts. As the principle is stated in Dole v. Erskine, supra, and most of the other cases, there are, in effect, two assaults, one succeeding the other, separated, indeed, by only a moment of time, but as effectively in law as if a day had intervened, so that they are different transactions. This sounds well on paper, and is perhaps too well supported by authority to be now repudiated; but we confess serious difficulty in applying it to the ordinary physical encounter, where victory may be continually shifting her perch from one combatant to the other, and where each, as he gains the advantage, changes from defender to aggressor. It is likely to be extremely difficult for juries to ascertain whether a blackened eye or flattened nose occurred at a moment of illegal attack or lawful defense. However, as the law seems well settled, those difficulties we may leave for solution by the trial courts and their juries.

There being a possibility of two rights of recovery resulting from one continuous encounter, the next question arising is whether they may be subject of counterclaim in the same action, so that the jury may make allowance to each, and, setting off one against the other, give ultimate recovery for only the balance to him most injured by wrongful acts of the other. Counsel does not cite any authority for a favorable answer to this question, unless, as he contends, Pelton v. Powell, supra, is such. That case does not decide the exact question. There the plaintiff claimed that, in the entire affray, defendant was the aggressor, while defendant claimed that all his acts were defensive, and that the same acts set forth in the complaint constituted an assault on him by plaintiff, for which he counterclaimed damages. The court held that the transaction set up by the counterclaim was identical with that in the complaint, and therefore the defendant might plead those acts as a counterclaim arising out of the same transaction. It was pointed out that the facts of the counterclaim served to defeat plaintiff's cause of action. The result was that the parties might try the question who committed the one assault, and judgment be rendered against him in favor of the other. There was no contemplation of a severance of the fracas, so that during one period defendant might be aggressor and liable, and during another the situation be reversed. That case is entirely analogous to two in New York, where collision of vehicles was claimed by the owner of each to have been caused solely by negligence in the other; each denying any negligence on his own part. Counterclaim by the one first sued was sustained. Ryan v. Lewis, 3 Hun, 429; Heigle v. Willis, 50 Hun, 588, 3 N. Y. Supp. 497. The exact question here presented has, however, been decided in favor of appellant's contention in Slone v. Slone, 2 Metc. (Ky.) 339, and against it in Schnaderbeck v. Worth, 8 Abb. Prac. 37; the first holding that the successive assaults are parts of the same transaction; the latter holding that they are separate transactions. The Schnaderbeck Case is supported by a similar holding as to mutual slanders, occurring in the same conversation, in Sheehan v. Pierce, 70 Hun, 22, 23 N. Y. Supp. 1119. These are all the authorities we have found on the subject, and we may consider them pretty evenly balanced; for, while we are inclined to yield special consideration to the views of the New York courts on matters of code practice, yet only inferior courts have passed upon this question in that state, and are antagonized to the highest court of Kentucky. Considering the subject, then, as res integra, we must recognize that the theory of mutual assaults in a continuous encounter is reached in Dole v. Erskine, supra, by declaring them separate and successive transactions, from which the deduction that they were not counterclaimable against each other would be obvious if the word “transaction” is used in our statute (section 2656, Rev. St. 1898) in exactly the same sense as in the case last cited. Doubtless the circuit court so assumed, and decided accordingly, but is that assumption unavoidable? The word must be used in a very limited and technical sense in order to say that, as each party gains ascendancy in a continuous fracas, the one transaction terminates, and a new and separate one commences. Will such strictness and narrowness give due effect to the beneficent purpose of our statu...