Mechelke v. Bremer

• Decision Date: 11 December 1883
• Citation: 17 N.W. 682,59 Wis. 57
• Parties: MECHELKE AND ANOTHER v. BREMER.
• Court: Wisconsin Supreme Court

59 Wis. 57

17 N.W. 682

MECHELKE AND ANOTHER

v.BREMER.

Supreme Court of Wisconsin.

Filed December 11, 1883.

Appeal from circuit court, Dodge county.L. T. Fribert, for respondents, Ernest Mechelke and another.

E. P. Smith, for appellant, Henry Bremer.

TAYLOR, J.

This is an action to recover damages for an alleged assault and battery by the defendant and appellant upon Christine Mechelke, wife of Ernest Mechelke. The appellant's answer is a justification of the alleged assault and battery, and claims that what was done by him was lawfully done in ejecting the said Christine from his house, where she unlawfully persisted in remaining, after being requested by him to leave. The case was tried by a court and a jury, and a verdict was rendered in favor of the plaintiffs for $225. No exceptions were taken on the trial except one to the rejection of some evidence offered by the appellant. There were no exceptions taken to the charge of the court to the jury. There was a motion for a new trial made in the most general terms, without specifying any particular grounds therefor. The motion was overruled, and the defendant appeals to this court.

It is alleged that the verdict was against the evidence, and that the jury should have found that the appellant was justified in what he did in removing Christine from his house and premises; and, if the verdict is not erroneous in that respect, then the damages awarded are excessive. Whether the defendant was justified or not depends upon the credibility of the witnesses. If the plaintiffs and their witnesses are to be believed, then it is very clear that his acts were not justifiable. If, on the other hand, the defendant and his witnesses are to be credited, and no credit is to be given to the plaintiffs and their witnesses, the judgment should have been for the defendant. But the question as to the credit which should be given to the evidence of the witnesses of the respective parties is one solely for the jury, and all the questions bearing upon that point were fairly submitted to them by the court in his instructions; and their verdict upon that question is conclusive upon this court. It would be a waste of labor to cite authorities upon a question of this nature. It is equally clear that there is nothing in the evidence, under the finding of the jury, that credit should be given to the testimony of the plaintiffs and their witnesses, rather than to the defendant and his witnesses, which would justify this court in setting aside the verdict on the ground that the damages are excessive. As was said in the case of Corcoran v. Harran, 55 Wis. 128, [S. C. 12 N. W. REP. 468:] “To authorize the interference of this court, (upon that question,) it should appear from the evidence that the damages are so excessive as to create the belief that the jury have been misled either by passion, prejudice, or ignorance. But this power is very sparingly used, and never except in a clear case.”

We see nothing in the evidence in this case which would justify us in finding that the...