Spear v. Sweeney

• Citation: 60 N.W. 1060,88 Wis. 545
• Parties: SPEAR v. SWEENEY.
• Decision Date: 13 November 1894
• Court: United States State Supreme Court of Wisconsin

88 Wis. 545

60 N.W. 1060

SPEAR

v.SWEENEY.

Supreme Court of Wisconsin.

Nov. 13, 1894.

Appeal from circuit court, Dodge county; A. Scott Sloan, Judge.

Action by James J. Spear against Eugene Sweeney. There was a judgment for plaintiff, and defendant appeals. Affirmed.

This is an action for an alleged assault and battery committed on the plaintiff by the defendant September 30, 1892. The answer is a general denial. At the close of the trial the jury returned a verdict in favor of the plaintiff, and assessed his damages at the sum of $3,250. From the judgment entered thereon the defendant brings this appeal.Malone & Bachbuber, and J. J. Dick, for appellant.

Harlow Pease, for respondent.

CASSODAY, J.

It appears that September 12, 1891, the defendant let his farm of 200 acres to the plaintiff to work on shares for the term of five years; that thereupon the plaintiff moved into one of the dwelling houses on the farm, and took full control and possession of the whole farm under the lease, except that the defendant continued to live in another house upon the farm, which, together with the right to take water from the wells and feed and stable one horse, was reserved by the defendant in the lease; that in 1892 the plaintiff raised upon the farm, and placed in the granary thereon, about 1,000 bushels of barley; that soon after the defendant put a lock on the granary door, and fastened iron bars across the windows, to prevent the plaintiff from going into the granary; that the barley was damp, and needed attention to prevent it from heating; that the plaintiff repeatedly asked the defendant to open the door of the granary, or to give him the key so that he could unlock it, but the defendant at all times refused; that on the evening of September 30, 1892, the plaintiff informed the defendant that he must open the door before sunrise of the next morning, or that he (the plaintiff) would open it himself; that the next morning, the defendant having failed to open the door as so requested, the plaintiff took a cold chisel and a monkey wrench, and went to the granary door to take off the lock; that while in the act of doing so, and standing upon a box about 18 inches high, with his face towards the door, the defendant picked up a piece of fence board, and struck the plaintiff with it on the shoulder and on the back. This is frankly admitted by the defendant, although he claims that he so struck after the plaintiff had refused to stop so taking off the lock, and had raised the wrench to strike him. The witnesses on the part of the plaintiff state the facts much stronger against the defendant, and to the effect that he struck him upon the head as well as the back. Upon the undisputed evidence, we think the trial court was justified in charging the jury, in effect, that the plaintiff was entitled to some damages, and that the only question for them to consider was as to the amount of damages actually resulting from the assault and battery. And in that connection we do not think it was improper for the court, in charging the jury, to say “that either those damages were very severe and serious, resulting perhaps in making the plaintiff a physical and mental wreck, or they were very slight, and the plaintiff has all through, since that time, been shamming, and is, in plain language, a huge fraud. Now, it is for you to determine which of these things are true.”

It is claimed on the part of the plaintiff, and the evidence on his behalf tends to prove, that the plaintiff was very badly injured by the blows inflicted; that in consequence thereof he was confined to his bed, and under the care of physicians, for several months; that during the time he was more or less delirious, and suffered intense pain, and had meningitis, which finally terminated in insanity, and was so legally declared, and sent to the insane asylum, but was discharged therefrom January 16, 1894; that he continued to be treated by a physician, and will never recover from the effects of the injury; and that he was insane, or partially insane, at the time of the trial. The defendant claims that the plaintiff's assumed mental weakness at the time of the trial was a pretense and a sham, and he assigns error because the court did not allow him more latitude, on cross-examination, to expose the same. After the defendant's counsel had cross-examined the plaintiff to the extent of 3 1/2 typewritten pages, he was asked numerous questions as to what he had said to divers other persons, whereupon the court interrupted the examination, and the following took place: “The Court: I don't think these questions are competent. If he told these people that, you can show it by them without...