Plank v. Grimm

• Decision Date: 03 February 1885
• Citation: 22 N.W. 470,62 Wis. 251
• Parties: PLANK v. GRIMM.
• Court: Wisconsin Supreme Court

62 Wis. 251

22 N.W. 470

PLANK

v.GRIMM.

Supreme Court of Wisconsin.

Filed February 3, 1885.

Appeal from circuit court, Columbia county.

Jones & Sanborn, for appellant.

G W. Cate, for respondent.

TAYLOR, J.

The appellant brought his action in the circuit court to recover damages against the respondent for an alleged assault and battery committed by the respondent upon the person of the appellant. The case was tried in the circuit court by a jury, and a verdict was rendered in favor of the respondent; and thereupon the appellant moved the court, upon the minutes of the trial, to set aside the verdict, and for a new trial, upon two grounds, viz.: First, that the court erred in the admission of evidence on the trial; and, second, that the verdict is contrary to the law and the evidence given on the trial. The motion to set aside the verdict and for a new trial was denied. The plaintiff excepted; and from the judgment entered on the verdict he appeals to this court, and assigns as error the refusal of the circuit court to set aside the verdict for the causes assigned in his motion.

The evidence upon the trial showed that the plaintiff and defendant, just before the alleged assault and battery took place, were in the wagon-shop of Mr. Milliard, in the town of Almon, both sitting upon the same bench. The bench was from 12 to 16 feet long. The plaintiff was sitting on one end, and the defendant on the other. While in that position a controversy arose between them, and abusive language was used by the plaintiff; that the defendant got up from his end of the bench, and approached to within a few feet of the plaintiff. The evidence which was excepted to related to this change of position on the part of the defendant. The defendant, as a witness in his own behalf, was asked by his counsel the following question: “What was your object in coming from the place where you were sitting around in front of him, where you say you did go?” This was objected to by the plaintiff. The objection was overruled, and the plaintiff duly excepted. The answer was: “I went around to him when he made the remarks about the barn to get closer to him to hear the conversation that he had at that time.” The defendant had testified that when he came up near to the place where the plaintiff was sitting, the plaintiff had a small hand-ax in his hand, and that he raised the ax and flourished it. He was then asked, “What did you think he was about to do when he raised the ax?” This question was also objected to by the plaintiff, but the objection was overruled, and exception taken; and he answered, “I thought he was either going to throw the ax or strike me in the head with it.” We think the first question was admissible, within the authorities. In this case it was material to show the intent with which the defendant approached the plaintiff, under the circumstances. Both parties were in a heated and angry war of words, and the plaintiff might well claim that the approach of the defendant was with hostile intent. The appearances would probably indicate such hostile intent. The defendant knew whether he made the approach with such intent, and it was therefore competent for him to state what his intent...