Barnes v. Martin , 15 Wis. 240 ( 1862 )

By the Court,

Dixosr, C. J.

All the witnesses concur in saying that the plaintiff in error had taken up and was peaceably possessed of the cow at the time of the affray. The defendant in error Barbara came for and demanded that the cow be delivered up, which the plaintiff refused. She then went home, and soon afterward returned with a knife in her hand, avowing her purpose to take the cow by force. The plaintiff resisted, and it was in the prosecution of this unlawful enterprise that she received her injuries. For whether the plaintiff was authorized to take up the cow, and might lawfully detain her or not, the defendant Barbara had no right to retake her by force. The law affords ample redress for all injuries of that kind, and will not justify parties in resorting to violence and breaking the public peace. The defendant was therefore acting in her own wrong in thus endeavoring to dispossess the plaintiff, and that whether his possession was lawful or unlawful. Under these circumstances, we think it clear that the judge should have given the fourth and sixth instructions asked by the plaintiff. It cannot be disputed, if the jury had found that the defendant in error, in order to obtain the cow, threatened and intended to commit violence upon the plaintiff with the knife, that her acts ' in coming up to him with the intention of executing such purpose, would have amounted to an assault. Neither can it be claimed that vindictive damages should be given in such a case, unless the jury should find that the acts of the party resisting were without apparent cause, and proceeded from wanton or malicious motives. It would seem to be one of the clearest principles of justice, that a party resisting the forcible and unlawful act of another ought not to be punished by way of exemplary damages, unless he be guilty of excess and act from motives of malice.

The judge was also wrong in charging the jury that if they found for the plaintiffs (defendants in error), they might give punitory damages. The facts did not warrant an instruction so broad and unqualified. He should have told them that their right to do so depended upon their finding the qualifying facts above stated.

The “loss of time” is no part of the injury for which compensation can be given in this action. The time and services of the wife belong to the husband, and for a loss of them he must sue alone. The joint action can only be brought for the personal suffering or iniury to the wife. 1 Chitty’s Pl., 73; 18 Johns., 443.

“ Loss of standing in society” is á very vague and uncertain element of damage in a battery. If by it were meant circumstances of outrage and insult which wound the feelings and tend to lower the party aggrieved in the estimation of their fellow citizens, it was well enough. But if, as was argued by counsel, it was intended that the jury might give compensation for any public odium which might arise from the exposure at the trial of the domestic quarrels of the defendants in error, then it was clearly wrong.

There was no error in receiving the affidavit of the plaintiff in error for the purpose of showing his wealth. If he had requested, no doubt the court wóuld have limited the reading of it to such facts as pertained to that subject.

The husband, Peter J. Martin, was properly received as a witness. He was a party to the action, and not within the exceptions specified in the statute. R. S. p. 818, sec. 2. The legislature obviously intended that the rights of the parties to testify in their own behalf should be reciprocal, which would not be the case were one to be excluded because his or her husband or wife happened also to be a necessary party, The legislature have made no such exceptions, and we cannot. Neither can we see any motives of policy which should forbid their giving evidence in such cases. Marsh vs. Potter, 30 Barb., 506; Babbott vs. Thomas, 31 id., 277; Lockhart vs. Luker, 36 Miss., 68.

Judgment reversed, and a new trial awarded.