Maichle v. Jonovic

• Decision Date: 30 June 1975
• Docket Number: No. 447,447
• Citation: 69 Wis.2d 622,230 N.W.2d 789
• Parties: Steven MAICHLE, a minor, by Robert J. Beaudry, his gdn. ad litem, et al., Respondents, v. Scott JONOVIC et al., Appellants.
• Court: Wisconsin Supreme Court

Page 789

230 N.W.2d 789

69 Wis.2d 622

Steven MAICHLE, a minor, by Robert J. Beaudry, his gdn. ad litem, et al., Respondents, v. Scott JONOVIC et al., Appellants.

No. 447.

Supreme Court of Wisconsin.

June 30, 1975.

This is an action to recover damages for injuries sustained as a result of an alleged assault and battery. The suit was brought by the plaintiffs-respondents, Steven Maichle and his parents, Henry and Agnes Maichle, against the defendants-appellants, Scott Jonovic and his parents, John A. and Joanne Jonovic. Trial was had to a jury on May 10 and 11, 1973, which returned a verdict finding that Scott's striking of Steve was justifiable. The appellants moved for judgment on the verdict and the respondents moved to change the jury's answer to the special verdict on justification. The trial court granted the respondents' motion, changed the jury's answer to the special verdict, and judgment was entered for the plaintiffs in the amount of $1,122.16, including costs and disbursements. The appellants appeal from the judgment. No issue is raised with regard to the damages or the liability of Mr. and Mrs. Jonovic if Scott's act is found to be without justification.

Hayes & Hayes, Milwaukee, for appellants.

Robert J. Beaudry, West Allis, for respondents.

CONNOR T. HANSEN, Justice.

The incident in question occurred on November 18, 1970. At that time Scott was eight years of age and Steve was nine years of age. They attended the same school in New Berlin, Wisconsin, and had participated together in Cub Scouts. The two families lived diagonally across the street from each other. Until about a month before the incident, the two boys were friends.

Scott testified that he and another older boy, Jeff Grundmann, had an argument about four weeks before the incident in question. Jeff started to pick on Scott and persuaded Steve to pick on Scott also. According to Scott, for the next four weeks, Jeff and Steve knocked books from Scott's hands; took Scott's ball at recess; physically held Scott while pretending to hit him saying there was going to be a fight and that they were going to beat him up; called Scott names; and chased Scott's dog. Scott also testified that on one occasion Jeff and Steve threw stones and gravel at him while he was walking his dog. Several of these incidents were observed by Mrs. Jonovic as they occurred when the boys got off the school bus, which stopped in front of the Jonovic home.

Scott testified that on the day in question, he boarded the school bus first and was seated when Jeff got on. According to Scott, Jeff started hitting him and when Steve subsequently got on the bus, Steve also hit him. The fighting continued until the bus driver got on the bus. Steve and Jeff continued to call Scott names and stated that everyone on the bus should get off at Scott's stop because they were going to beat him up. Scott testified that he decided to get off the bus early because the bus driver was going the wrong way. As he walked past Steve's seat, Scott swung at him apparently hitting Steve in he mouth. Scott then ran out of the bus and Steve followed, jumping Scott and trying to hit him as Scott ran for home. Mrs. Jonovic testified that she saw Scott running from the bus with Steve hanging on his back.

Steve's account of the incident was substantially different. He admitted that he had been scuffling with Scott for nearly three weeks before the incident in question. Steve initially testified that he did not see Jeff hitting Scott on the bus on the day in question. He later admitted that he had seen Jeff hitting Scott but denied that he also hit Scott. Steve testified that Scott got off the bus first. Then Steve got off and Scott hit him in the mouth. Steve stated that he ran after Scott, but did not catch him, nor did he lay a hand on him.

It was undisputed that prior to the incident on the bus, Steve and Scott had never had a fist fight although they had argued frequently. The bus ride from school was only two minutes long. While the boys normally got off the bus in front of Scott's house, the bus driver was a substitute and it was claimed by both Scott and Steve that they got off four houses early because the driver didn't know the stops.

The trial court instructed the jury on self defense and submitted the following special verdict question: 'At the time in question, was the striking of Steven Maichle by Scott Jonovic with justification?' The jury answered this question in the affirmative, which answer was later changed by the trial court.

The sole issue presented by this appeal is whether the trial court erred in changing the jury's answer to this special verdict question.

The rules governing when it is proper for a trial court to change the answer of a jury verdict are well settled. If there is any credible evidence which, under any reasonable view fairly admits of an inference that supports the jury's finding, the trial court has no authority to change the jury's answer. Only if the record is devoid of evidence that would sustain the verdict, or if the evidence were incredible, is it within the prerogative of the trial court to substitute its view of the evidence for that of the jury. Lueck v. Janesville (1973), 57 Wis.2d 254, 262, 204 N.W.2d 6; Longville v. Leusman (1970), 48 Wis.2d 251, 255, 179 N.W.2d 823; Lehman v. Sentry Ins. Co. (1967), 35 Wis.2d 96, 98, 150 N.W.2d 333.

Viewed most favorably to the jury's verdict, the jury could have found the following facts from the evidence: That Steve and Jeff had harassed Scott for four weeks prior to the incident in question by namecalling, pushing, knocking books out of his hands, by threatening to beat him up, including restraining him while they pretended to hit him, and by throwing stones or gravel at him; that on the day in question, Jeff and Steve hit Scott numerous times when he was on the school bus waiting to go home, which striking ceased only upon the approach of the bus driver; that Steve and Jeff bragged to other persons on the bus that they were going to best Scott up in front of Scott's house when the bus got there; that Scott got off the bus before his regular stop and was, therefore, four houses from his home; that the total bus trip took only two minutes; and that after Scott got off the bus, followed by Steve and Jeff, he turned and struck Steve and then ran home with Steve grabbing him by the back trying to hit him as he ran.

In Crotteau v. Karlgaard (1970), 48 Wis.2d 245, 249, 179 N.W.2d 797, 799, this court quoted approvingly from Wis. J I--Civil, Part II, 2006, as follows:

"Self-defense is the right to defend one's person by the use of whatever force is reasonably necessary.

"If the defendant reasonably believed that his life was in danger or that he was likely to suffer bodily harm, then he had a right to defend himself (and stand his ground) in such a way and with such force as under all the circumstances he at the moment honestly believed was reasonably necessary to save his life or to protect himself from bodily harm.

"By reasonable belief is meant such belief as a person of ordinary intelligence and prudence who was in the position of defendant would have under the circumstances existing at the time of the...