Gatzow v. Buening

49 L.R.A. 475, 81 N.W. 1003, 106 Wis. 1, 1900 Wisc. LEXIS 16

• Court: Wisconsin Supreme Court
• Decided: February 27, 1900
• Status: Published

Opinion

Maeshall, J.

Questions put to jurymen during the impaneling of the jury as to their being biased against unions were improperly excluded. That was a legitimate subject of inquiry leading up to questions going to competency and as a basis for a challenge for cause, and, independent of that, as a basis for a peremptory challenge. However, no objection to the collected jury was made, and that circumstance operated to waive the previous objections. Flynn v. State, 97 Wis. 44; Emery v. State, 101 Wis. 627.

There was an 'objection to the introduction of any evidence because the action is for a personal injury, and notice of the claim to defendant, in compliance with subd. 5, sec. 4222, Stats. 1898, was not pleaded. The idea of th'e appellants’ counsel is that the statute creates a condition precedent to the right of action and that plaintiff must show compliance with such condition to make such right of action complete. The wording of the statute is as follows: “No action to recover damages for an injury to the person shall be maintained unless, within one year after the happening of the event causing such damages, notice in writing, signed by the party damaged, his agent or attorney, shall be served upon the person or corporation by whom it is claimed such damage was caused, stating the time and place where such damage occurred, a brief description of the injuries, the manner in which they were received and the grounds upon Avhich claim is made, and that satisfaction thereof is claimed of such person or corporation.” That refers to bodily injuries. This is not such an action. It is not within the statute. Moreover, the statute is a limitation upon the remedy to enforce a right, not a condition of the right itself. It is a limitation statute (Relyea v. Tomahawk P. & P. Co. 102 Wis. 301), unlike sec. 1339, which prescribes the condition of a right as distinguished from a limitation upon a remedy to enforce a right. It being a statute of limitations, if it were applicable to this case, and we say it was not, the failure to take advantage of it, other than by an objection to evidence on the trial, waived the limitation upon the remedy. The law in that regard is fully discussed in Meisenheimer v. Kellogg, post, p. 30, opinion by Mr. Justice Wins-low.

It is urged that the cause of action stated in the complaint is for breach of contract, hence that instructions to the jury, permitting an assessment of damages as in a tort action, were erroneous. The trial court rightly decided that the purpose of the action, as stated in the complaint, was to recover compensation for damages suffered through tortious conduct of the defendants. The complaint sets forth a conspiracy to commit a wrong and acts pursuant thereto, to the special injury of the plaintiff. There is no room for serious controversy on that point.

Several errors are assigned on the theory that the combination of liverymen, known as the Liverymen’s Association of Milwaukee, to limit their services to persons patronizing them exclusively, and to monopolize the livery business in Milwaukee, including such service for the burial of the dead, and to carry prices to and maintain them at such a level as the combination might see fit to adopt, and acts done in pursuit of the purposes of such combination to the prejudice of, and regardless of their effect upon, plaintiff, Avere not unlawful. The trial court decided to the contrary.

It is not necessary in this case to decide to what length a combination of persons in restraint of trade, and interfering with personal liberty, may go to promote the interests of its members, without violating common-law rights and rendering such persons liable to respond in damages to the persons specially injured. Judicial expressions, in recent years at least, have not been in perfect harmony on the subject. The only safe course for the public, and legitimate course for the court, is for it to adhere strictly to the rules of the common law, both as regards what constitutes an unlawful conspiracy in restraint of trade, and the consequences to the guilty parties. So long as that is the law by which rights in regard to such matters must be tested, it is not the province of the court to change, but to administer, it.

The law applicable to this case, as regards the illegality of the combination in question, was plainly stated by this court in Milwaukee M. & B. Asso. v. Niezerowski, 95 Wis. 129. It was there decided that all combinations in restraint of trade are contrary to public policy and illegal, unless they are for the reasonable protection, by reasonable and lawful means, of persons dealing legally with some subject matter of contract. A combination that will resort to such means as tbe ruthless breaking in upon the solemnities of a funeral ceremony, or that aims to entirely monopolize such an essential to the burial of the dead according to the customs of the country as is usually furnished in cities by liverymen, and to so stifle competition and hamper individual, independent industry in regard to such business as to paralyze individual effort and compel every person, in order to obtain proper facilities for a funeral, to submit to the dictates of the combine, will not stand the test above indicated. Such was the liverymen’s union under consideration, by the uncontro-verted evidence. Such a combination is clearly unlawful as against public policy, and the means resorted to to effect its purposes in this case were likewise unlawful. It would be hard to conceive of a combination more odiously detrimental to the public interests, and more heartlessly oppressive to individuals, than one that seeks to control the customary means used in the burial of the dead, by the resort to such wanton acts as were perpetrated by the defendants in aid of the purposes of their combination.

This is an age of trusts and combinations of all sorts. There is clamor against them on the one hand, and for the privilege of combining upon the other, as if the law could be changed to fit the opinions and selfish ends of particular classes. There is clamor for laws to prevent combinations, while law exists that condemns most of them, which is as old as the common law itself, and sufficiently severe to remedy much of the mischiefs complained of that is actual; yet violations of such law are so common, and the remedy it furnishes so seldom applied, that its very existence seems, in many quarters, to be little understood. In Reg. v. Druitt, 10 Cox, Cr. Cas. 593, it -was held that any combination of persons to stifle and prevent the free use of labor or capital within legitimate bounds is unlawful, and that the law furnishes a remedy therefor. The liberty of a man’s mind and will to say how he shall bestow himself and his means, his talents, and bis industry, is as much the subject of the law’s protection as is his body.

' A combination to do an act tending necessarily to prejudice the public or oppress individuals by unjustly subjecting them to the power of the confederates and give effect to the purposes of the latter, whether of extortion or mischief, is unlawful.’ 2 Bishop, New Or. Law, § 230; Desty, Or. Law, § 115/ Morris Run C. Co. v. Barclay C. Co. 68 Pa. St. 173.

Every agreement between two or more persons to accomplish a criminal or unlawful object, or a lawful object by criminal or unlawful means, is an unlawful conspiracy, and any person whose rights are injured by acts done in furtherance of such conspiracy has his action at law for redress in damages.

If an unlawful combination exist, it is none the less unlawful because existing under a self-imposed constitution and governed by by-laws, and because it conducts its operations in a public or semi-public way, asserting the right, in pursuit of its purposes, to interfere with individual liberty and with the public interests. In a proceeding for damages for wrongdoing by such a combination to the special injury of an individual, the constitution and by-laws of the association, and protests of its members of innocence of bad intent, and of adherence to the obligations of their association, however innocent may be its name, to prevent incurring its penalties, will constitute no protection whatever, as regards compensatory damages to a person specially injured by overt acts of its members in pursuit of the purposes of the conspiracy.

The union under consideration is within the condemnation of the common-law rule that a combination of persons, natural or artificial, to restrict legitimate trade or commerce in any field, by hampering or destroying individual liberty, stifling competition, or preventing the exercise of individual freedom to dispose of one’s labor or capital according to his own free will, so long as the legal rights of other persons are not infringed upon, is unlawful. The limitations upon the rule are in the nature of exceptions to it to be shown by way of defense where the combination is shown to exist. If it is not so far-reaching, as regards effects upon the public, or time or place, or the benefits of the members are not so large, as to render the combination an unreasonable interference with trade or individual freedom, that will remove from it the stamp of illegality; yet overt, unlawful acts, by two or more members of the combination acting by agreement to carry out its purposes, will render the combination, as to them, unlawful. The plainest principles of public policy, as before indicated, condemn such a monopoly as was attempted in this case, and the conduct of the defendants to carry out the purposes of the combination was as clearly unlawful.

At the close of the evidence there was a request on the part of counsel for defendant Bchubert for a special verdict, whereupon the court stated that the only material controverted question of fact as to such ddfendant was whether he participated in the withdrawal of the hearse, as stated in the complaint, and that counsel might frame a question covering that subject. At the close of the argument the request for a special verdict was renewed, and questions submitted for approval of the court. Such request was then denied as made too late, and the court proceeded to submit the case to the jury, by a general charge, for decision on the question of whether defendants, or either of them, participated in depriving plaintiff of the hearse after it arrived at his house on the day of the funeral, and on the question of whether the taking away of the hearse inflicted injury to the plaintiff’s feelings, and whether the act was perpetrated with wilful intent to insult and injure plaintiff; also for an assessment of damages under rules given by the court.

The refusal to grant the request for a special verdict upon the ground assigned therefor, was error. Under seo. 2858, Stats. 1898, the right to such a verdict was absolute, the request therefor having been made in conformity with the statute before any argument to the jury. The record indicates that the learned trial court did not consider the request complete till questions were prepared and submitted, because, when it was first made, preparation of questions by counsel was directed, and when they were presented and the request renewed, it was denied as coming too late.

The statute, in mandatory language, clearly imposes on the trial court the duty of preparing the form for the special verdict where one is seasonably requested. Schumaker v. Heinemann, 99 Wis. 251. It will hardly do to shift that duty onto counsel for the moving party and then deny his motion because the duty is not performed before arguments to the jury commence. The plain letter of the statute was violated. The only legitimate purpose of suggestions from counsel, as to what particular questions shall be submitted for a special verdict, is to direct the attention of the court to the issuable facts upon which the controversy depends. If the verdict does not cover all the issues essential to a determination of the case; no judgment can be rendered upon it; but if it does cover such issues no error can be successfully assigned because the form for the questions suggested by counsel was not adopted, or because questions were not framed and requested by such counsel.

The question of whether the refusal of the request for a special verdict constituted reversible error turns on whether it was prejudicial; for by the settled practice and the mandate of the statute (sec. 2829, Stats. 1898), the court must, at every stage of the action, disregard any error or defect in the proceedings which shall not affect the substantial rights of the adverse party. The truth of the saying by Chief Justice DixoN, in the early history of the court, that the statute is a beneficent provision which covers a multi-tucle of errors, grows in significance as the instances multiply where the way to justice is by it rendered direct and certain" and speedily traversed, notwithstanding numerous errors happening through inadvertence, negligence, or inefficiency at some point, that otherwise would delay and render the enforcement of remedies so burdensome as to, in effect, constitute a denial of justice in whole or in part.

The statute applies here. The court rightly decided, as before indicated, though the decision was not thereafter strictly followed in the charge, that the conduct of the defendants was wrongful, intentional, and specially injurious to plaintiff, entitling him to his remedy in damages therefor. It was discretionary with the court whether to direct the jury, in case of awarding exemplary damages, to separate the amount assessed therefor from the amount allowed for compensatory damages.' Though the charge would indicate to the contrary, the record shows that all the facts warranting punitory damages were admitted, or were established by the evidence without reasonable controversy. Such being the case, there was nothing to submit to the jury .except the mere question of the amount of the verdict. The trial court was not bound, on request for a special verdict, to submit questions covering uncontroverted facts, Ault v. Wheeler & W. Mfg. Co. 54 Wis. 300; Kerkhof v. Atlas P. Co. 68 Wis. 674; Ward v. C., M. & St. P. R. Co. 102 Wis. 215.

It follows that the denial of the motion for a special verdict was wrong solely on-the ground of the reason assigned for it. It was useless to require the jury, as did the court, to say whether defendants, or either of them, participated in depriving plaintiff of the use of the hearse, because Schubert said he instructed his driver to return to the barn if a nonunion man was in charge of the funeral, and that he gave such instructions in conformity to his obligations to the union; the evidence was all one way that Buenmq was the moving spirit in causing the driver of the hearse to obey the instructions of his master, and that his acts were in accord with his duties as secretary of the union, and in conformity to a request made of him, either by Schubert himself or by some one in his behalf, whose acts SeJmbert fully ratified with knowledge of all the facts. Such ratification rendered Schubert liable for actual and exemplary damages the same in all respects as if he had originally authorized-Buening to act in his behalf. Robinson v. Superior R. T. R. Co. 94 Wis. 345. There was perfect concert of action between all the parties concerned in the transaction to deprive plaintiff of the use of the hearse, and the acts of each and all were in accord with the agreement between the members of the union.

The court needlessly required the jury to say whether facts existed warranting an assessment of exemplary damages. It was sufficient that they were instructed that the assessment of such damages was discretionary with them.

It was correctly said by the court, in substance, before the formal charge was given, that the acts of the defendants were wilful and with intent to deprive plaintiff of the use of the hearse at a time when they knew it would be impossible to supply another. As men of common sense, defendants must have known that their conduct would greatly shock the sensibilities of the plaintiff, would humiliate and cause him great mental confusion, pain, and suffering. No reasonable conclusion could be arrived at from the evidence, other than that the defendants intentionally carried out their unlawful design under such circumstances as to demonstrate the power of the combination to punish liverymen for doing business in an independent way, and persons for dealing ■Avith such nonunion liverymen; that with such ends in view they proceeded with reckless disregard of consequences and with full knowledge of the inevitable result to plaintiff. All the elements of fact warranting exemplary damages appear clearly from the evidence as matter of law. There was the wilful violation of plaintiff’s rights, inflicted under circumstances of aggravation, insult, or cruelty, with vindictiveness and malice. McWilliams v. Bragg, 3 Wis. 424; Nichols v. Brabazon, 94 Wis. 549.

The trial judge, in his charge to the jury, divided recoverable damages into three kinds,— actual, compensatory, and exemplary. He said, “ If you find for the plaintiff, the damages which he may recover are actual and compensatory damages.” He then, in effect, told the jury that eight dollars was the actual damage by the undisputed evidence, and that they should find a verdict at least for that sum; and then said, “If you find that the act of taking away the hearse was one of insult and humiliation to the plaintiff, then you may also allow damages to plaintiff’s feelings for the insult, humiliation, and anxiety of mind suffered by him in consequence of such act.” Further instructions were given on the subject of punitory damages. Exception was taken to that portion of the charge in regard to allowing damages for injured feelings, and also to a refusal to charge the contrary doctrine.

The views of the law so given to the jury were erroneous and prejudicial in several particulars, notably in the one specifically excepted to. Damages in a tort action are not divided into actual, compensatory, and exemplary. The term “ compensatory damages ” covers all loss recoverable as matter of right. It includes all damages for which the law gives compensation, and that gives rise to the term “ compensatory damages.” “ Compensatory damages ” and “ actual damages ” are synonymous terms. Pecuniary loss is an actual damageso is bodily pain and suffering. Wilson v. Young, 31 Wis. 574. The jury should have been told that plaintiff was entitled to recover full compensatory damages, and then instructed as to their elements in a case like this. If it were a ease where recoverable, damages in,. eluded injury to the feelings, the jury should have been made to understand that compensation therefor was a matter of right, not a matter in their discretion. When guilt is established in a tort action, whether exemplary damages should be allowed or not is submitted to the judgment of the jury; but not so compensatory damages.

In this case there was no physical injury to plaintiff, and no personal injury to him of any kind» save to his, feelings. The case does not fall within the few exceptions to the rule,— whifeh prevails in this state and in most jurisdictions,— that mental distress alone is too remote and difficult of measurement to be the subject of an assessment of damages. The true idea is that, under the general principle applicable to tort actions that recoverable damages are limited to such as are the natural and proximate result of the act complained of, some physical injury is necessary to a definite causal connection between the wrongful act and the mental condition, to render the former, in a legal sense, the cause -of the latter, and such condition, with its immediate cause, sufficiently significant to be comprehended and measured in a money standard by average human wisdom with a reasonable degree of certainty.

We will not go' further in the discussion of the rule of damages. The law in regard to it, for this state, was, upon full consideration, declared in Summerfield v. W. U. Tel. Co. 87 Wis. 1, opinion by Mr. Justice Winslow. The general rule there stated is clearly applicable to this case. There are exceptions which will be found pointed out in the Surry-merfield Case, but they have no reference to a case of this kind.

The numerous exceptions saved by appellants might be discussed in much greater detail, but they are in the main covered by the foregoing. There were some propositions contained in the requests refused which were correct-in the abstract, but unnecessary to the case because the facts were not disputed, and immaterial because inapplicable to the facts. For the error in regard to the rule of damages the judgment must be reversed. No other reversible error has' been discovered in the record.

By the Court.— The judgment of the superior court is reversed, and the cause remanded for a new trial.