Higgins v. Minagham

• Decision Date: 18 March 1890
• Citation: 45 N.W. 127,76 Wis. 298
• Parties: HIGGINS v. MINAGHAM.
• Court: Wisconsin Supreme Court

76 Wis. 298

45 N.W. 127

HIGGINS

v.MINAGHAM.

Supreme Court of Wisconsin.

March 18, 1890.

Appeal from circuit court, Fond du Lac county.

Maurice McKenna, for appellant.

Duffy & McCrary and Charles E. Shepard, for respondent.

ORTON, J.

This action is brought by the plaintiff to recover damages for the loss of service of his son John Higgins, about 19 years of age, and for expenses of medical attendance upon him, occasioned by the wounding of said John, in one of his legs, by a ball shot from a gun held and discharged intentionally and maliciously, by the said defendant, on the night of the 25th day of June, 1887. The plaintiff obtained a verdict of $300. The defendant made a motion to set aside the verdict, and for a new trial, on the minutes of the court, which was denied. At the close of the arguments of counsel, the court said, in the presence of the jury: “I am inclined to think, from the testimony in the case given on both sides, that it is the duty of the court, as a matter of law, to charge the jury that no justification has been shown by the defendant, if he perpetrated it, so that the only question for the jury will be,” etc. As a part of the instructions to the jury, the court said: “The court has ruled that from the facts in this case, if you find that this shot which inflicted this injury was fired by the defendant, he was not justified in doing that act, under the facts and circumstances disclosed by the testimony.” The counsel of the defendant duly excepted to said statement and instruction, and also asked the court to give several instructions as to what facts would warrant the jury in finding that the defendant was justified in doing the act charged, which were refused.

We think that, under the peculiar circumstances of this case, the court erred in taking away from the jury the question of justification, and for this error the judgment should be reversed, and a new trial ordered. It was the only controverted question in the case, and the only defense the defendant had. The shooting and injury were not denied. The only question left to the jury was as to the amount of the plaintiff's damages for the consequent loss of his son's services. A jury trial might as well have been denied to the defendant, for the loss of services was a mere matter of computation from the testimony. Such a case should be certain beyond all question, and the facts undisputed, to warrant the court in taking it away from the jury. The facts were not undisputed, and the testimony was conflicting and contradictory as to many material facts. The version of what occurred at the time, and of his own conduct, given by the defendant and his witnesses, is materially different from that given by the plaintiff's witnesses. The defendant was entitled to the verdict of a jury upon his conduct under the provoking and distressing circumstances of such a great wrong and outrage. As said by the court in Patten v. People, 18 Mich. 333, a case of riot by a charivaring party, where the outrage was at least no greater, and life was taken: “Of the weight a jury should give to these considerations, no safer standard can be given than their own individual consciousness, and the consideration of what they, with the honest purpose of avoiding the danger without unnecessarily taking life, might, under the circumstances in which the defendant was placed, be likely to do.” To apply the test sanctioned in the above case, the court cannot be as competent as the jury. It is a case peculiarly within the province of a jury. On what state of facts did the court act in deciding that there was no justification? He had no right to decide whether the evidence of the plaintiff or defendant was most credible. Kellogg v. Nelson, 5 Wis. 125;Mechelke v. Bramer, 59 Wis. 57, 17 N. W. Rep. 682;Bowe v. Rogers, 50 Wis. 598, 7 N. W. Rep. 547. The jury would have had the right to believe the defendant's rather than the plaintiff's witnesses. What were the facts, according to the defendant's testimony? The defendant was a respectable farmer and citizen, 45 years of age, and lived near the village of Chilton. His house was near the highway, and he owned the land on both sides of the road. He had six children living at home,--five daughters, between seven and twenty years of age, and one son, aged eleven years. His first wife had died some two years before, and shortly before the 18th day of June, 1887, he had married a second wife. His children evidently needed a mother's care. On the night of said 18th day of June, about 9 o'clock, a large company of persons, numbering about 20, congregated in front of his house. He was about to retire, when some one knocked at his door. He asked who was there. A voice responded, saying: “The boys are out here, and they want $15.” He said he would give them nothing, and they had better go out of here. He went out, and the person had gone. He heard a crowd coming, drumming on saws. As they passed his gate, he told them to pass on quietly, and make no disturbance. They stopped near his big gate, in front of his barn, and one of them said, in a loud voice: “Let's not be driven off. Let us go back and give him hell.” Then they commenced shooting with guns, “hollering,” drumming on sap pans, singing, and making all the noise possible. They fired off their guns at the same time. They sang: “My wife she died. I married another, the devil's grandmother;” and sang obscene songs. They called him “a son of a bitch” several times, and, after he retreated into the house, they called him that, and to “Come out here.” When it got to be between 12 and 1 o'clock in the night they said: “Let us load up with ball and shot, and shoot the damned son of a bitch.” Then, as they were going away, they said: “They would have $20 the next night, and they would keep this up all summer.” This was after 1 o'clock. The next morning he found his hitching post taken up, and placed inside of his fence, and the posthole full of stones, and the sticks used to pound on his fence and gate. On the night of the 22d they came again, with accessions to their number, and there were 30 or 40 of them. They repeated the same noises, and fired gun-wads into the gate, and the gate was black with powder, and an obscene cut or picture was made on the gate-post, and they had cut off a long piece of a rope which was in his corn-crib, and left it on the fence. They were shooting and “hollering” that night, like so many devils, firing off their guns, pounding on the fence, calling him to come out, with the same vulgar expressions, and this continued until 12 o'clock. The defendant did not go out that night. On Saturday night, the 25th, they came there again, about 10 o'clock. The defendant and his family had gone to bed. They heard their shouts and guns fired off. There was no one in the house but the defendant and his wife and children. He did not get up for a while, or until his wife became agitated by intense fear, and was much frightened. She trembled in bed, and her limbs quivered. She jumped up, and said that he must drive those rascals away, or that she would be unable to get up in the morning. His little girl, seven years of age, was crying in a frenzy of excitement. She was so affected by fear and excitement that she looked very pale, and would wake up and scream for several weeks after wards. This was the situation of things...