Lowe v. Ring

101 N.W. 381, 123 Wis. 107, 1904 Wisc. LEXIS 225

• Court: Wisconsin Supreme Court
• Decided: November 15, 1904
• Status: Published

Opinion

Siebecxee, J.

Several errors are assigned upon tbe ad- - mission of testimony over plaintiff’s objection.

(a) Upon cross-examination, plaintiff was asked if defend-ant bad not paid in full and settled for rent for periods sub- ■ sequent to tbe time of tbe claim which be sought to offset against the amount due for tbe cow. Tbe court directed that ■the inquiry be answered, over objections. This claim for rent was tbe subject of contention between tbe parties immediately before they came to blows, and plaintiff testified concerning 'it on direct examination. This cross-examination of tbe plaintiff was proper to inform tbe jury whether bis claim was -.made merely to annoy and provoke defendant, or was an attempt to collect a demand which, he in good faith believed was ■due him.

(b) Plaintiff was also compelled to answer the inquiry, over objection, whether he was prompted to institute this action because the defendant compelled him to pay for the cow. While plaintiff’s motive in bringing the suit can in no way affect his cause of action, the inquiry must have been calculated to show his bias and prejudice, and thus discredit him as a witness. We do not perceive that there was an abuse of the right of cross-examination. Had he answered in the affirmative, it would have been proper for the jury to consider this fact in determining the weight of his testimony and the degree of credibility to be attached to his evidence.

(c) The next exception argued pertains to the admission of evidence showing that plaintiff had committed particular assaults and batteries at times preceding the one in question. The plaintiff and several witnesses were examined on this subject, and their testimony showed that he was guilty of such offenses at different times, covering a period of from four to seventeen years prior to the time of this affray. Defendant seeks to justify the introduction of this evidence upon the ground that it might tend to show that the injuries complained of had been received in such former assaults, and that it would show that plaintiff was in the habit of employing a physician only in those cases in which he intended to claim and sue for damages for personal injuries. There is nothing in the evidence to warrant the inquiry upon these grounds. The injuries described by the plaintiff, and for which compensation was asked, were all of recent origin. His employment of physicians on former occasions can have no relevancy as showing the necessity of employing one to attend him for the injuries which he claimed to have suffered on this occasion. The evidence was not competent for these purposes.

It is argued, however, that the evidence was competent and material to show plaintiff’s character as being of a quarrelsome and pugnacious disposition. This class of testimony has, save in exceptional cases hereinafter referred to, not been admitted to show the character of a party, even where character is material to the Controversy. Proof of particular instances of misconduct of a party, as evidence of character, is-deemed repugnant to the best administration of justice, and is therefore admitted only upon cross-examination for the-purpose of discrediting witnesses and in cases to recover damages for an indecent assault upon a female. In the last class of cases, evidence of particular instances of unchaste conduct is admitted to show character in this and some other jurisdictions. In the case of Watry v. Ferber, 18 Wis. 502, 525, the-court declares:

“But whatever may be the true rule in regard to the admission of such testimony in criminal prosecutions, it appears to us in a civil action of trespass, when the plaintiff has alleged as a matter of aggravation that the defendant had connection with her against her will, the defendant should be-permitted to show that the plaintiff has been previously criminal with other persons, as a circumstance tending to disprove-the probability of the use of force.” People v. Shea, 125 Cal. 151, 57 Pac. 885; State v. Patterson, 88 Mo. 91.

In other civil actions for the recovery of damages such evidence is held incompetent in' all jurisdictions. The grounds-upon which such evidence is excluded are that it would tend to a confusion of issues, waste of time, and “because of the-unfair surprise to the witness, who cannot know what variety of false charges may be specified, and cannot be prepared to expose their falsity.” This rule is well established, and accepted by the courts. Muetze v. Tueteur, 77 Wis. 236, 46 N. W. 123; Greenleaf, Evidence (16th ed.) § 461. It was prejudicial error to admit this proof over plaintiff’s objection.

In view of the issues raised by the pleadings, it was proper to receive evidence of plaintiff’s general reputation as a quarrelsome and pugnacious person. Defendant avers that he-struck plaintiff in self-defense, and alleges that he knew plaintiff was disposed to assault others without provocation or justification, and believed, in view of plaintiff’s conduct and violent disposition, he was in peril of being violently assaulted when he struck him. Under this allegation, proof of plaintiff’s disposition in the respect mentioned has been deemed relevant and material by this court, and we do not feel disposed to disturb the practice. Keep v. Quallman, 68 Wis. 451, 32 N. W. 233. See, also, Culley v. Walkeen, 80 Mich. 443, 45 N. W. 368.

The court instructed the jury:

“In assessing damages you may take into consideration the question of whether or not the plaintiff is of a quarrelsome disposition, whether or not he has heretofore been engaged in quarrels and fights, as bearing upon the question of how much, if any, plaintiff was humiliated and injured in his feelings by the assault alleged in this action. . . . This you may do, not by way of reducing actual damages, but in ascertaining actual damages.”

This instruction is excepted to, and made the basis of cóm-plaint, because it permits the jury to take the evidence of plaintiff’s reputation into consideration in estimating his damages. In so far as the instruction submitted the question of former particular instances of plaintiff’s misconduct in violating the law as competent evidence in the case, the instruction was erroneous, for the reasons above stated, and was, well calculated to prejudice plaintiff in his rights.

It is the general rule that evidence of a party’s character is not admissible in civil actions for damages unless his character is directly in issue — as in slander, seduction, and other cases — “even though the cause is one for which a criminal prosecution may be brought, or where the offense set up in justification involves a crime.” Geary v. Stevenson, 169 Mass. 23, 47 N. E. 508, and cases cited; Fahey v. Crotty, 63 Mich. 383, 29 N. W. 876, 6 Am. St. Rep. 305; Cummins v. Crawford, 88 Ill. 312, 30 Am. Rep. 558; Greenleaf, Evi-den.ce, § 145, snbd. 4. Tbis general rule does not go to the extent of excluding such evidence for all purposes. As stated in Keep v. Quallman, plaintiff’s general reputation as a man of quarrelsome and violent disposition, if within the knowledge of a defendant before an affray, is competent evidence to go to the jury upon the issue of self-defense. Culley v. Walkeen, 80 Mich. 443, 45 N. W. 368; Galbraith v. Fleming, 60 Mich. 403, 27 N. W. 581. The court ruled in this case that an issue of self-defense was raised by the pleadings, and submitted it to the jury upon the evidence. But, since a new trial must be ordered, it will be best to ascertain if this proof pertaining to plaintiff’s general reputation is material and competent to aid the jury in ascertaining the compensatory damages. Plaintiff asked for full compensatory damages, which includes the element of compensation for injury to his feelings resulting from the sense of humiliation and disgrace to^ which he had been subjected by this affray. In awarding him remuneration for the injury, the jury were required to measure the extent of hi-' suffering in this respect bv ascertaining to what degree the affair affected his moral sensibilities and caused him anguish of mind. In solving this question, plaintiff’s disposition would have a bearing as showing what suffering, if any, he had endured, resulting from his sense of humiliation and disgrace. As above stated, parties to civil actions for damages are not permitted to go into the question of the complainant’s character for the purpose of showing his damages, except it be directly in issue. This evidence, however, is not excluded because it is irrelevant to the inquiry, but because a trial of character for that purpose would be an unfair surprise to the plaintiff, and would prejudice the jury, and would result in an undue waste of time. Since proof of plaintiff’s exceptional character was provable and competent under the issue of self-defense, there is no reason why such proof may not be considered by the jury, with other relevant testimony, in determining wbat compensation be is entitled to recover for injury to bis feelings.

Another exception urged to the charge is that the court erred in giving the following instruction on the subject of punitory damages:

“If, for instance, the plaintiff and defendant met, and there was provocation in what occurred between them growing out of a dispute about a business matter at the time, and the defendant, moved, by a sudden impulse, turned and struck the plaintiff, and that is all that happened, then you would not be justified in punishing the defendant by what are called exemplary damages. That would be the ordinary case of business men getting into a dispute over a business matter, and one of them becoming angry, and on the impulse of the moment striking the other. So, if you find that was the situation here — that the defendant, without previous malice, and not wantonly, became angry over a business transaction, having provocation as reasonably appeared to him, and on the impulse of the moment he struck the .plaintiff — then I say to you, gentlemen, that you would not be justified in assessing any exemplary damages.”

We think this instruction was clearly erroneous. The facts and circumstances covered by the instruction, under which the jury were directed to allow no punitory damages, were such from which the jury might reasonably have drawn the inference that the defendant acted maliciously and wantonly in assaulting the plaintiff. The jury were, in effect, directed that, since this altercation arose out of a business transaction, which led defendant to beat plaintiff, it refuted all inferences of malicious or wanton conduct. The instruction seems to have been framed in the idea that under no reasonable inference from the evidence could it be said that defendant acted maliciously and wantonly in striking the plaintiff, unless it appeared that he harbored malice against him before the altercation resulting in the affray. It was not necessary that defendant be imbued with malice for any length of time before the assault to subject bim to punishment by way of enhancing the damages. If malice prompted the assault, though it existed but for a moment before the-blow was struck, then exemplary damages may be awarded. The instruction failed to give the jury the correct rule on the subject, and may have been prejudicial to plaintiff’s rights. The fact that no punitory damages were awarded may have resulted from the erroneous instruction.

It is insisted that the court should have granted a new trial upon the ground that the compensatory damages awarded are wholly inadequate for the injuries proven to have been sustained. The evidence as to the injuries conflicts in many material and important respects. The case is of such a nature, and the facts and circumstances are such, that varying conclusions may reasonably be reached, depending largely upon what the jury found actually took place at. the time of the affray, and in what respect and to what extent plaintiff suffered. We cannot say that the jury acted perversely in fixing the amount of the compensation.

Other questions discussed by counsel are not likely to arise upon another trial, and therefore .need not be considered.

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