Ulrich v. Schwarz

• Decision Date: 30 April 1929
• Citation: 225 N.W. 195,199 Wis. 24
• Parties: ULRICH v. SCHWARZ.
• Court: Wisconsin Supreme Court

199 Wis. 24

225 N.W. 195

ULRICH

v.SCHWARZ.

Supreme Court of Wisconsin.

April 30, 1929.

Appeal from a judgment of the Circuit Court for Sauk County; A. G. Zimmerman, Circuit Judge. Reversed.

This action was brought by Albert Ulrich, by guardian ad litem, against George Schwarz, to recover damages caused by an assault and battery committed by the defendant, George Schwarz, upon the said plaintiff, Albert Ulrich. From a judgment in favor of the plaintiff, the defendant appeals.Grotophorst, Quale & Langer, of Baraboo, for appellant.

V. H. Cady, of Baraboo, for respondent.

OWEN, J.

On the evening of August 12. 1927, the defendant struck the plaintiff with his fist in the vicinity of his right ear. This action was brought to recover damages. The assault and battery is not denied. Upon the trial, the defendant sought to introduce proof to show that, at the time of the assault the plaintiff was one of a party of young men who had entered upon the premises of, and were then engaged in provoking a quarrel with, defendant's brother. The reception of this evidence was urged as proper in the mitigation of compensatory damages, upon the authority of Wilson v. Young, 31 Wis. 574. In that case compensatory damages were divided into two classes. The second class included “those which may be recovered for injuries to the feelings, of which latter class the elements are, the insult, the indignity, the public exposure and contumely, and the like.” It was held that the circumstances of the assault might mitigate the damages which could properly be assessed for these elements of compensatory damages, and that circumstances having such a tendency were properly admissible in evidence. This doctrine was concurred in by Justices Cole and Lyon, Chief Justice Dixon dissenting, expressing the view that any and all elements of compensatory damages could be likewise mitigated, as had been previously held in Morely v. Dunbar, 24 Wis. 183.

[1] In Craker v. Chicago & Northwestern Railway Co., 36 Wis. 657, 17 Am. Rep. 504, the justices concurring in the decision joined with Chief Justice Ryan in overruling the doctrine thus announced in Wilson v. Young, 31 Wis. 574, and it was there said that no substantial basis existed for a classification of the various elements going to make up compensatory damages in such cases, and that the mitigation of compensatory damages was never permissible. Craker v. Chicago & Northwestern Railway Co., has since been followed. Fenelon v. Butts, 53 Wis. 344, 10 N. W. 501;Grace v. Dempsey, 75 Wis. 313, 43 N. W. 1127;Prindle v. Haight, 83 Wis. 50, 52 N. W. 1134. The doctrine of that case must be held to be the established rule of this court.

[2] Counsel for appellant now concedes that the proffered evidence was not admissible for the purpose of mitigating compensatory damages, but that it was admissible to enable the jury to properly appraise the damages which by the charge of the court was permitted to be assessed for “sense of humiliation and shame caused by the defendant publicly assaulting him in the manner the evidence convinces you the assault was committed.” It is contended that such damages can only be proved by evidence showing the circumstances under which the assault was committed, such as whether the assault was in a public place, whether the plaintiff was conducting himself blamelessly, etc.

The cases hereinbefore cited dealing with the question of whether any of the elements of compensatory damages may be mitigated arose upon exceptions to the charge, and dealt only with that particular principle of law. The question of whether evidence leading up to and surrounding the assault was admissible as bearing upon the degree of humiliation and shame suffered by the plaintiff was not discussed. We deem it apparent that injuries to feelings resulting from an assault depends in no small degree upon the character, temperament, and sensibilities of the person assaulted and the circumstances under which the assault occurred. If a man assaults a woman with intent to carnally know her, she is entitled to recover damages for injury to her feelings resulting from the assault. Would it not make a difference whether the woman thus assaulted was a chaste woman or an inmate of a house of ill fame? It is apparent that the feelings of the chaste woman would be more deeply wounded than would be those of the common bawd. Such also would be the case if the assault was encouraged by the lascivious conduct of the woman just before the assault. These considerations led the Texas court to rule that it was proper to ask the prosecutrix whether she had had sexual intercourse with the defendant. Donaldson v. State, 10 Tex. App. 307.

In Nelson v. Snoyenbos, 155 Wis. 590, 145 N. W. 179, it was held that similar evidence has a bearing upon both compensatory and examplary damages. That was an action to recover damages for assault and battery and false imprisonment. It appeared that the proprietor of a grocery store caught a boy stealing tobacco, whereupon he cuffed and detained him. The trial judge ruled that...