Kersten v. Weichman , 135 Wis. 1 ( 1908 )

The following opinion was filed January 8, 1908:

KeuwiN, J.

1. It is claimed that the court erred in allowing the respondent to amend his reply to the appellants’ counterclaim. In the appellants’ answlr.it is alleged that a large dwelling house was upon the lands leased to them by Jhe respondent. This allegation was also- made in the original reply, but in the amendment to the reply it is alleged that under the lease appellantsi were given possession of a small house upon lands, other than those leased to the defendants, owned by the plaintiff. - The amendment changed the original reply, which in effect admitted that there were two houses upon the lands leased, so as to read that there were no houses thereon. It is insisted by appellants that the allegations in tbe original reply are binding on respondent, although at variance with the allegations of the amended reply, and must be regarded in the record, and that “an admission in an answer will not be affected by a repugnant allegation or denial in any part of the same answer, and a general denial in an answer will not put the plaintiff upon proof of facts elsewhere admitted in the same answer.” The following Wisconsin cases are cited on this proposition: Hartwell v. Page, 14 Wis. 49; South Milwaukee B. H. Co. v. Harte, 95 Wis. 592, 70 N. W. 821; Sims v. Mut. F. Ins. Co. 101 Wis. 586, 77 N. W. 908; Farrell v. Hennesy, 21 Wis. 632; Dickson v. Cole, 34 Wis. 621. These axe all cases where the question arose on the pleadings before the court. When the pleading was amended the part removed by the amendment dropped out of the case as a pleading. It' does not appear that the appellants were, or could have been, surprised by the amendment, or that they were in any way prejudiced by it. It is very clear that the allegations removed from the original reply were inserted by mistake and the amendment merely conformed the pleading to the facts. A broad discretion is allowed trial courts in allowing amendments, and it is clear that the discretion of the court was not abused in allowing the amendment. Sec. 2830, Stats. (1898); Post v. Campbell, 110 Wis. 378, 85 N. W. 1032; Gates v. Paul, 117 Wis. 170, 94 N. W. 55; Ill. S. Co. v. Budzisz, 106 Wis. 499, 82 N. W. 534.

2. Error is assigned because the court did not submit to the jury the question whether the appellants were entitled to damages for failure to get possession of the large dwelling house. Whether this question should have been submitted to the jury depends upon whether the evidence was sufficient to support a verdict in favor of the appellants upon the proposition. Of course the law is well settled, as contended by counsel for appellants, that if there is any credible evidence from which a reasonable inference can be drawn in support' of th.© claim of either party the question must he left to the jury. Zentner v. Oshkosh G. L. Co. 126 Wis. 196, 105 N. W. 911; Morgan v. Pleshek, 120 Wis. 306, 97 N. W. 916; Beyer v. St. Paul F. M. Ins. Co. 112 Wis. 138, 88 N. W. 57; Finkelston v. C., M. & St. P. R. Co. 94 Wis. 270, 278, 68 N. W. 1005; Zimmer v. Fox River V. E. R. Co. 118 Wis. 614, 95 N. W. 957. The difficulty we have in this case is not with the rule of law, but with the evidence. AYe cannot discover from the record that there is sufficient evidence to support a finding in favor of appellants on the proposition. In fact, the showing made by the appellants themselves, we think, was sufficient to establish the fact against them. A discussion of the evidence on the point would serve no useful purpose. The court below found that there was not sufficient evidence to go to the jury upon this point, and we do not feel justified in disturbing the finding.

3. It is contended by appellants that the court erred in its instructions to the jury on the measure of damages. It is insisted by respondent that there is nothing before us for review under this head, for want of proper exceptions to the charge. The second exception covers a large portion of the charge respecting the measure of damages. A single exception to a portion of a charge containing independent propositions, some of which are good, is too general and will be disregarded. Hayes v. State, 112 Wis. 304, 307, 87 N. W. 1076; Grabowski v. State, 126 Wis. 447, 105 N. W. 805; Sheppard v. Rosenkrans, 109 Wis. 58, 85 N. W. 199. The portion of .the charge excepted to by the second exception contains at least two separate and distinct propositions on the question of the measure of damages, one of which is unobjectionable. Therefore, under the established rule of this court, the exception must be disregarded.

- 4. Other errors are assigned respecting remarks of counsel in presence of the jury and in the admission and rejection of evidence. No objection was taken to the remarks of counsel or a ruling asked thereon; lienee this alleged error cannot be considered. Mayer v. Milwaukee St. R. Co. 90 Wis. 522, 63 N. W. 1048; Pelton v. Spider L. S. & L. Co. 132 Wis. 219, 112 N. W. 29. Counsel claims further under this head that the right to a full cross-examination was denied him. We are unable to discover from the record that appellants were prejudiced by any ruling made against them on cross-examination. Some of the questions were objectionable as assuming facts not proved, others were objectionable on the ground of incompeteney or immateriality, and still others on the ground that the subject had been fully covered. Nor was there any error in admitting evidence that there were no houses upon the leased land. The allowance of the amendment to the reply, heretofore referred to, rendered this evidence admissible.

We think the case was fairly tried and no reversible error committed, and that the judgment should be affirmed.

By the Court. — The judgment is affirmed.

Wiitslow, O. I., took no part.

A motion for a rehearing was denied March 10, 1908.