Palmer v. Smith

• Decision Date: 03 October 1911
• Citation: Palmer v. Smith, 147 Wis. 70, 132 N.W. 614 (Wis. 1911)
• Parties: PALMER v. SMITH.
• Court: Wisconsin Supreme Court

147 Wis. 70

132 N.W. 614

PALMER

v.SMITH.

Supreme Court of Wisconsin.

Oct. 3, 1911.

Appeal from Circuit Court, Rock County; George Grimm, Judge.

Action by George Palmer against Carroll L. Smith. Judgment for plaintiff, and defendant appeals. Affirmed.

This action was brought to recover damages for personal injuries alleged to have been sustained by plaintiff in consequence of a shot fired by the defendant while plaintiff and others were at a charivari on the premises of the defendant on the 23d day of June, 1910. It is charged in the complaint that the defendant wantonly shot the plaintiff in the leg, and that the bullet penetrated plaintiff's leg below the knee, cutting, tearing, bruising, and lacerating the muscles, tendons, and arteries. The complaint further charges that the plaintiff sustained damages on account of pain, suffering, loss of time, and expense sustained by him in consequence of the injury, and lays his damages at $5,000. The answer denies generally the allegations of the complaint, and sets up, among other things, that the plaintiff and others confederated and conspired unlawfully for the purpose of frightening and terrifying the defendant and his wife and to trespass on his premises, and that, if the plaintiff was injured, he was injured otherwise than by the defendant, and by his own negligence. The jury returned a general verdict in favor of the plaintiff assessing his compensatory damages at $175 and punitory damages $50. Judgment was rendered upon the verdict in favor of the plaintiff, from which judgment this appeal was taken.Charles E. Pierce, for appellant.

J. J. McManamy, for respondent.

KERWIN, J. (after stating the facts as above).

The defendant was married June 16, 1910, and at the time of the injury complained of was living on a farm, occupying the south half of the farmhouse, and his brother, who was also a married man, occupying the north half with his wife and one child four years old. Each occupied his half exclusively. On the night in question at about 11 p. m. the plaintiff and some 14 others went to the house of the defendant to charivari him. When the crowd arrived on defendant's premises, he and his wife had retired, and were in a small room on the second floor which faced the east toward the highway, with two windows facing east and one south. It was a bright moonlight night. When plaintiff and some of the crowd were near the house, they made some noise so that defendant heard them, got up, took his rifle, and shot through one of the windows at least four times in rapid succession, and it is claimed that one of the bullets took effect in plaintiff's leg, causing the injuries complained of. The errors assigned may be classified under the following heads: (1) In refusing nonsuit and directed verdict. (2) In the admission of evidence. (3) In instructions to the jury. (4) In refusing to instruct the jury as requested.

[1] 1. It is claimed by the appellant that a nonsuit should have been granted, and that the court, having denied a nonsuit, should have directed a verdict for defendant. This position is taken on the ground that there was no evidence that defendant shot the plaintiff, and, further, that the defendant was in the lawful defense of himself and family, and had a lawful right to do what he did. The evidence tends to show: That on the night of June 21, 1910, a crowd assembled at the premises of the defendant (the plaintiff not being present) to charivari the defendant, and made some noise, but did not succeed in getting any response from defendant. That the party went there to have a good time and congratulate the defendant. The brother of defendant told one of the party that they must make more noise in order to get defendant out. That there was no intention to injure defendant, his wife, or property on the night of June 23d. That there were no threats made, but some noise before the shooting. That the bullet from one of the shots fired by defendant struck plaintiff. That defendant was angry, “mad clear through.” That he took no aim when he fired the shot, but intended to hold the gun pretty near level; intended to drive the crowd away. That defendant was told that the boys were coming on the night in question, and said “All right, let them come.” Defendant testified: “Q. When you shot you were mad were you? A. Yes, sir; I was angry. Q. You lost your temper, didn't you? A. Yes, sir. Q. Excited and mad all through? A. Yes, sir.” He further testified that he heard a little noise, enough so that he got up and looked out to see what it was. Those assembled were farmers and boys working for farmers in the vicinity. It is unnecessary to prolong this opinion by a discussion of the evidence under this head. The evidence was ample to warrant the jury in finding for the plaintiff. Therefore no error was committed in denying the motions for nonsuit and directed verdict.

[2] 2. Error is assigned upon the admission of evidence. The plaintiff was allowed to testify over objection as to his purpose in going on defendant's premises on the night of June 23d. He testified that he went there to have a good time and to congratulate the defendant, if he came out, and with no intention of harming the defendant, his wife, or property; also, he was permitted to testify over objection that he talked with defendant's brother, who told plaintiff that they would have to do different, they would have to get disks and pound them and more guns to get him out. It is argued by counsel for appellant that the evidence was incompetent for the reason that the plaintiff's intention was immaterial, and that the statement of defendant's brother was hearsay; therefore incompetent. The issue as to plaintiff's intention to injure the defendant is squarely raised by the answer. It is charged that the plaintiff with others entered into a conspiracy to injure and terrify defendant and his wife, and unlawfully trespass on the premises of the defendant, and for the purpose of violating the law of the state of Wisconsin against rioting and disorderly conduct. Evidence respecting the purpose and intention of the plaintiff under the issues was competent and his testimony as to his own intent was competent.

[3] The evidence of what defendant's brother said and his talk with plaintiff also had a bearing upon the plaintiff's purpose and intention in going upon the premises of the defendant, was a part of the transaction, and was competent. Holtz v. State, 76 Wis. 110, 44 N. W. 1107;Bates v. Ableman et al., 13 Wis. 644;Roebke v. Andrews, 26 Wis. 311;Eastman v. Bennett et al., 6 Wis. 232;Mack v. State, 48 Wis. 271, 4 N. W. 449.

[4] The truth of the statement of defendant's brother was not the material point, but the fact that such statement was made about the time of the charivari. The objection that the evidence was hearsay was not good. Whether the evidence of the statements of defendant's brother were incompetent is not very material, since such statements in evidence could not have prejudiced the defendant.

[5] 3. Error is assigned on the charge. Exception is taken to the following: “Nevertheless, such a situation would not of itself justify or excuse the defendant in wantonly firing a loaded gun or rifle into the assembly or at a member thereof.” The ground of objection to this part of the charge is that it takes from the jury a question of fact as to whether or not the situation was such as to justify the defendant, relying upon Higgins v. Minaghan, 76 Wis. 298, 45 N. W. 127. But, when taken in connection with the part of the charge immediately preceding it, it is plain that it could not have prejudiced the...