Monson v. Lewis

101 N.W. 1094, 123 Wis. 583, 1905 Wisc. LEXIS 11

• Court: Wisconsin Supreme Court
• Decided: January 10, 1905
• Status: Published

Opinion

WiNsnow, J.

There was no doubt, under the evidence, of the fact that the defendant struck the plaintiff and fractured-his arm; but the principal disputed question seemed to be whether the defendant struck the blow while trying to take the scraper from plaintiff’s possession, or whether the plaintiff had entirely let go of the scraper, and the defendant liacl, without violence, taken it. and struck the blow while the plaintiff was endeavoring to retake it. In the one case the act of defendant was an attempt to take the property by force from plaintiff’s possession, and in the other ease it was an ■attempt to defend his own possession. In this situation of the evidence, the following instruction was given:

“If the defendant in this case ordered and directed the plaintiff to let go of the scraper and quit work, and discharged him, and the plaintiff refused to let go of the scraper and refused to quit work, then, after such order and refusal, the defendant had a right to use proper and reasonable force to enable him to control the scraper in question, and the jury must determine from all the evidence how much and what kind of force the defendant did in fact use.”

This instruction admits at least of the construction that, if the defendant had discharged the plaintiff, the defendant was ■entitled to take the scraper from plaintiff’s possession by force, if the force used was reasonable and proper to accomplish the purpose. TVe do not understand this' to be the law. It was held in Barnes v. Martin, 15 Wis. 240, that the owner of property which is in the peaceable possession of another has no right to retake the property by force. This.principle is based upon public policy. It is in the interest of peace and public order. Any other rule would substitute the strong •arm for the court of justice, and promote lawbreaking and -violence. The right of, the owner to recapture personal property is to be exercised only when he may peaceably do so, with the possible exception (not necessary to be cliscussed hero) that; when the property has been momentarily taken from the owner by force or fraud, it may be lawfully retaken, if only reasonable and proper force be used. 2 Am. & Eng. Ency. of Law (2d ed.) 983; 3 Cyc. 1078. In the present case, plaintiff’s original possession of the scraper was lawful, and, if he retained the possession continuously, the defendant was -not justified in, using force to take it away; but if the plaintiff let go- of it, and the defendant peaceably took possession, lie might defend such possession with reasonable and proper force.

The court further charged the jury that “in this case, as in all other civil cases, the burden is upon the plaintiff to establish the facts essential to his recovery by a preponderance of' the evidence.” This might well be understood as meaning that tho plaintiff, after proving the blow, was obliged to prove that there was no justification for it. This is not the law. Tho blow and consequent damage being admitted by the-defendant, a prima facie case was made, and the burden lay upon him to prove facts constituting a justification therefor. Timm v. Bear, 29 Wis. 254; Blake v. Damon, 103 Mass. 199; 2 Greenleaf, Ev. (15th ed.) §§ 95-98.

By Hie Gourt. — Judgment reversed, and action remanded for a new trial.