Muska v. Apel

• Citation: 232 N.W. 593,203 Wis. 389
• Court: Wisconsin Supreme Court
• Decision Date: 14 October 1930
• Parties: MUSKA v. APEL ET AL.

203 Wis. 389

232 N.W. 593

MUSKA

v.APEL ET AL.

Supreme Court of Wisconsin.

Oct. 14, 1930.

Appeal from a judgment of the Circuit Court for Chippewa County; James Wickham, Circuit Judge.

Action by James Muska, Jr., against Edward Apel and another. Judgment for plaintiff, and defendants appeal.--[By Editorial Staff.]

Reversed and remanded.

Action commenced March 14, 1928. Judgment for plaintiff entered May 9, 1929. Defendants appeal.

The action is to recover damages for assault and battery in one count and for false imprisonment in another. By defendants' pleadings and evidence the assault and battery is denied and the arrest and imprisonment of plaintiff is admitted. The defendants by answer and evidence seek to justify the imprisonment by claiming that plaintiff was caught by Apel, a game warden, in using or having a snag pole, in violation of the snag-pole provision of the fish and game laws, and that Apel at the time attempted to arrest him for such violation and take him before a magistrate to charge him therewith; that plaintiff resisted and in making resistance attempted to shoot Apel with Apel's gun and on its missing fire threw the gun into the river and ran away; that three weeks later Apel and the other defendant, also a game warden, without a warrant, arrested and imprisoned the plaintiff in the county jail overnight and then took him before a magistrate and charged him with violating the snag-pole provision of the statute and with unlawfully resisting an officer because of his acts on the earlier date. On the second occasion acts were committed by plaintiff which constitute an assault and battery against one or both the defendants unless lawfully committed by him in resisting an unlawful arrest. The criminal proceedings were dismissed by the magistrate, the one on the ground that the pole in plaintiff's possession is not a snag pole because having only one hook attached, and the other on the ground that the arrest being unlawful the plaintiff had right to resist. The pole, which is in evidence, is eight feet long and one and one-fourth inches thick and has attached at one end a fish hook six inches long and three-sixteenths of an inch thick, with a hook two and three-eights inches across and of the same distance from point to curve and barbed seven-eighths of an inch from the point. The plaintiff's acts done in resisting the arrests are pleaded as counterclaims. Plaintiff claimed he had the pole to use only to gaff fish caught by a companion who was casting from a river bank.

At close of the trial in circuit court a special verdict was prepared. Two of the questions were answered by the court, and found that (1) plaintiff did not fish with a snag pole, and that (2) Apel did not have reasonable ground to believe that plaintiff had been fishing with a snag pole. By other questions of the verdict the jury found that (3) plaintiff did not attempt to shoot Apel; (4) that plaintiff's resistance was reasonably necessary to resist an unlawful arrest; (5) defendants arrested plaintiff because (a) plaintiff had violated the statute relating to the use of a snag pole and (b) not because he had assaulted Apel with a loaded revolver with intent to do him great bodily harm, (6 1/2) plaintiff did not use the pole by drawing it through the water in attempt to catch fish; (7) plaintiff's compensatory damages were $1,750; (8) defendants' acts were malicious; (9) no exemplary damages; (14) plaintiff did not strike defendant Johnson.

The court ordered a new trial unless plaintiff would remit damages in excess of $800 and entry of judgment with costs in case such remission was made. The plaintiff made the remission, and judgment for $800 damages and $128.07 costs was entered.

John W. Reynolds, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and Fred Arnold, of Eau Claire, for appellants.

Alexander Wiley and Robert L. Wiley, both of Chippewa Falls, for respondent.

FOWLER, J.

[1] The defendants first urge that the court erred in ruling that plaintiff's pole was not a snag pole. The statute, section 29.27(2), defines the term “snag pole” as meaning any pole to which a number of fish hooks or clusters of fish hooks of any kind or description are attached, and designated (designed) to be placed in or drawn through the water for the purpose of catching fish. Section 370.01 provides that certain rules stated “shall be observed” in the construction of the statutes of this state unless such construction would be inconsistent with the manifest intention of the Legislature, among which rules is subsection (2), providing that “every word importing the plural number only may extend and be applied to one person or thing as well as to several persons or things. * * *” Applying this rule to the statute defining a snag pole would not be inconsistent with the manifest intention of the Legislature in enacting the statute, but would, on the contrary, construe the statute to express its manifest intention, which was to prevent the use of any pole to hook into the body of fish and catch them by drawing the pole through the water. The pole with one hook attached constitutes as formidable an implement for catching fish by impaling them as does a pole with two hooks or a spear. A pole with two hooks would constitute a literal compliance with the statute. In view of its manifest purpose, we construe the statute as making the pole in evidence a snag pole if designed to snag fish, although literal construction of the phrase “any number of hooks or clusters of hooks” might at first blush seem to support the construction of the statute given by the trial judge.

[2]Section 29.05 vests in game wardens the right “to arrest, with or without a warrant, any person detected in the actual violation, or whom such officer has reasonable cause to believe guilty of...