Prindle v. Haight

• Decision Date: 27 September 1892
• Citation: 83 Wis. 50,52 N.W. 1134
• Parties: PRINDLE v. HAIGHT.
• Court: Wisconsin Supreme Court

83 Wis. 50

52 N.W. 1134

PRINDLE

v.HAIGHT.

Supreme Court of Wisconsin.

Sept. 27, 1892.

Appeal from circuit court, Dane county; ROBERT G. SIEBECKER, Judge.

Action by Flora A. Prindle, administratrix of E. E. Prindle, deceased, against James C. Haight. From an order striking certain allegations out of his answer, defendant appeals. Affirmed.

The other facts fully appear in the following statement by LYON, C. J.:

This action was brought by the plaintiff's intestate, in his lifetime, to recover damages for an alleged malicious assault and battery committed upon him by the defendant. The defendant, in his answer, denies the malice charged, and sets out at considerable length certain alleged malicious acts of the plaintiff's intestate towards him, which it is claimed were deliberately planned to exasperate the defendant to commit the assault complained of. Most of these acts were alleged to have been committed during the year preceding such assault. These allegations of provocation were, on motion of plaintiff, stricken from the answer by the court. The defendant appeals from the order striking out the same. Pending the appeal the original plaintiff died, and the cause has been duly continued in the name of his administratrix, the present plaintiff. For convenience, the deceased is referred to in the following opinion as the plaintiff.La Follette, Harper, Roe & Zimmerman, for appellant.

Olin & Butler, for respondent.

LYON, C. J., ( after stating the facts).

On this appeal we shall go into no extended discussion of the rules of pleading and evidence applicable to actions to recover damages for personal injuries maliciously inflicted. If there be a recovery in this action at all, it must be for full compensatory damages; that is, the actual damages resulting from the injury complained of, without diminution by reason of acts of provocation not amounting to a justification of the assault. This rule was long since settled in this state. The cases on the subject are collected in Grace v. Dempsey, 75 Wis. 313, 43 N. W. Rep. 1127. If the assault was malicious, the jury may award exemplary damages. Hence defendant must be allowed to allege and prove any facts which tend to rebut the existence of malice on his part. Proof that he committed the assault under stress of recent provocation would tend to rebut malice. He may therefore allege in his answer and prove such recent provocation. His answer contains such allegations, which were not stricken...