Rinehart v. Whitehead

• Decision Date: 22 September 1885
• Citation: 24 N.W. 401,64 Wis. 42
• Parties: RINEHART v. WHITEHEAD AND OTHERS.
• Court: Wisconsin Supreme Court

64 Wis. 42

24 N.W. 401

RINEHART

v.WHITEHEAD AND OTHERS.¹

Supreme Court of Wisconsin.

Filed September 22, 1885.

Appeal from circuit court, Green county.

P. J. Clawson, for respondent, Ira Rinehart.

Carter & Cleary, B. Dunwiddie, and B. F. Dunwiddie, for appellants, Henry Whitehead and others.

COLE, C. J.

After a careful examination of the bill of exceptions, we fail to discover any error in the case which should reverse the judgment. There is much conflict in the testimony, and it is not easy to get at the real facts. But the evidence as given on both sides, and the law applicable to it, seem to have been fairly submitted by the court below in its charge.

It is objected on the part of the defendants that improper testimony was admitted on the trial. For instance, it is said it was error for the court to permit evidence to be introduced, against defendants' objection, as to other fights than the one between the plaintiff and defendants, especially the testimony as to how the fight between “Ed.” Whitehead and Homer Ullone began, and the particulars of that fight. But it is indisputable that there were a number of fights going on at the same time, or in quick succession, between persons at the school-house. It was difficult to separate them, or to get the slightest idea of one without going into the history of others. They seem to be parts of one general preconcerted affray. The theory of the plaintiff about the transaction was that Henry Whitehead, together with his sons and some others, went to the school-house on the evening in question with the intent of getting up a quarrel with the “band boys,” or some persons they expected to find there, and whip them. If there was an unlawful combination on the part of Henry Whitehead and others with him to do such a wrongful act, whatever was said or done in the execution of that purpose was material and pertinent. The learned counsel for the defendants would not probably dispute the correctness of this proposition; but their contention is that there was no evidence of any such unlawful combination or conspiracy entered into before the defendants went to the school-house. All we have to say upon that point is that we think there was sufficient evidence of such a combination to carry the question to the jury. In that view all this evidence objected to was admissible.

Another error assigned is that it was improper to permit Dr. Confer to testify, against defendants' objection, as to the tendency or danger of wounds by bites in general, instead of confining the testimony to the actual danger of this wound, and the extent of the injury it had caused. The doctor had seen and examined this wound on plaintiff's thumb, and he was asked to state, from his experience and observation as a physician, the tendency or danger of that kind of a wound. He only testified as to the general or probable consequences of such an injury, which we suppose was proper. The injury to the thumb was caused by a bite by one of the defendants, and the question related to the general tendency or probable consequences of a bite by a human being on that part of the hand, and did not refer to bites by animals or reptiles. It seems to us the question was entirely proper in the form it was put.

We are unable to see any objection to the ruling of the court in allowing the witnesses Estel and Keel to testify to what they did, when called in rebuttal.

The rule of liability where several persons unite in an act which constitutes a wrong to another, intending at the time to commit it, or doing it under circumstances which fairly show them to be joint tort-feasors, the court gave. The law is substantially laid down in Brown v. Perkins, 1 Allen, 89, which was cited with approval by this court in Hilmes v. Stroebel, 59 Wis. 74;S. C. 17 N. W. Rep. 539. That is to say, the court instructed that “any person who is present at the commission of an assault, or an assault and battery, by one person upon another, encouraging or inciting the same by words, gestures, looks, or signs, or who in any manner or by any means countenances or approves the same, is in law deemed an aider and abettor, and liable as principal; and evidence that a person is present at the commission of an assault and battery, without disapproving or opposing it, is evidence from which, in connection with other circumstances, the jury may infer that he assented thereto, and lent to it his countenance and approval, and was thereby aiding and abetting the same. But it is to be borne in mind that mere presence at the commission of an assault and battery, or other wrongful act, does not render a person liable as a participator...