Olson v. Solveson

38 N.W. 329, 71 Wis. 663, 1888 Wisc. LEXIS 187

• Court: Wisconsin Supreme Court
• Decided: May 12, 1888
• Status: Published

Opinion

Cassoday, J.

The verdict is abundantly sustained by the evidence. In fact, the promise and refusal are both conceded. The several errors assigned will be considered.

1. Two juries were out, and one juryman had been excused at the time the cause was called for trial. This left but eleven names in the box, and the defendant objected to proceeding with the trial for that reason. It was never intended that the business of the court should be suspended merely because the regular panel of jurors should be thus exhausted. On the contrary, the statutes expressly provide that “ when, by reason of challenge or otherwise, a sufficient number of jurors, duly drawn and summoned, cannot be obtained for the trial of any cause, civil or criminal, the court shall cause jurors, duly qualified, to be returned from-the by-standers, or from the county at large, to complete the panel for such trial, and the court may, in its discretion, order a special venire to issue for that purpose, or such jurors may be returned by the sheriff . . . without writ.” Sec. 2538, R. S. The lack of jurors was supplied as thus prescribed. The three peremptory challenges to which each party is entitled apply to a full panel of jurors thus called, as well as to the regular panel. Sec. 2851, R. S.; Gilchrist v. Brande, 58 Wis. 184. The exceptions thereto must be overruled.

2. The plaintiff testified, in effect, that she was at Mrs. Rockwell’s, October 26, 1885; that her sister then lived there; that the defendant was there on that day, and agreed to marry her. She was then cross-examined by the defendant’s counsel, and, after being told to get down to the agree meat made with, the defendant, she was asked: “Who was there besides you and Martin? Answer. No one.” Thereupon the sister testified to the effect that the plaintiff and defendant were both there, and then, in answer to the question whether there was anything unusual in the appearance of either, which was objected to, she stated what was said between her and the plaintiff, but the same was immediately stricken out by the court. Assuming that the admission of such conversation was error, not cured by striking out the testimony, which it would be difficult to maintain, yet, as the defendant conceded the engagement and his refusal to marry, it affected no substantial right of the defendant, and hence is no ground for reversal. Sec. 2829, K. S.

3. The mere fact that the plaintiff’s counsel, in opening the case to the jury, stated, in effect, that judgment had been taken in the action by default at a former term, when the defendant’s counsel had just before stated the same fact, is not ground for reversal. Nor do we find anything in the remarks of counsel characterizing the evidence which should work a reversal.

A Numerous exceptions are taken to the remarks of the learned judge who presided at the trial. But the right to preside at all necessarily includes, within certain limits, a discretionary right to direct the proceedings. He must necessarily rule upon questions presented; the admission or rejection of testimony; indicate the line of examination or 'cross-examination to be pursued; and to limit or restrict the same when unnecessarily extended, or when there is any departure. It is impossible to perform such duties without oral communications which may at times characterize the question or testimony, or some part of it. It was certainly not error for the court, in effect, to announce that it could not wait until a certain jury should come in before proceed-¡ng with the trial; nor to inquire the object of a certain line of cross-examination, and to state wherein it was immaterial, and to restrict the same; nor in stating that it appeared in evidence that the defendant was not a poor man, since such was the undisputed fact, as appeared from the defendant’s letters in evidence. Besides, in the same connection, the defendant was recalled in his own behalf, and testified, in effect, that he had taken an inventory a year prior to the previous January, and that upon that basis he would then be worth between five and six thousand dollars. This estimate was really higher than the evidence would otherwise have authorized. That it was competent, upon the subject of damages, to prove the defendant’s pecuniary circumstances, there would seem to be no doubt. Bennett v. Beam, 42 Mich. 346, 36 Am. Rep. 442; Hunter v. Hatfield, 68 Ind. 416; Lawrence v. Cooke, 56 Me. 181; Reed v. Clark, 47 Cal. 194; James v. Biddington, 6 Car. & P. 589.

5. The defendant having absolutely refused to marry the plaintiff, obviated the necessity of any formal demand.

6. The court was requested to give a certain instruction to the jury to the effect that, under the complaint, the plaintiff was simply entitled to compensatory damages. The court failed to give such instruction in form, or to hear an authority read which is said to be in support of it. But the court did fairly submit to the jury the question as to what sum, from all the evidence, ought to be given to the “plaintiff by way of compensation for the injury sustained by the .breach of this contract.” They were, moreover, told, in effect, that the only essential question for them to determine was the amount of damages they should award to the plaintiff for the breach of the contract; that this question of damages, generally, in actions of this kind, was a difficult and delicate one, upon which the law had failed to furnish any rule by which they could measure the same by dollars and cents, but that they were to get at the damages from the evidence, the situation of the parties, what occurred between them, their condition and surroundings, and all about it, and then give such sum by way of damages as in their judgment the evidence would warrant; that they were not to give an unreasonable or exorbitant sum, but a just, reasonable, and fair sum,— such as they thought, from a fair consideration of all the evidence and all the surroundings, the plaintiff should have and the defendant ought to pay. Such is the substance of the portions of the charge to which exceptions were taken. The charge nowhere authorized punitive damages. On the contrary, it only authorized compensatory damages. It fully and fairly presented the question of damages, which was really the- only question in the case.

1. It is claimed that the damages are excessive. But this court will not interfere in such a case upon that ground merely, unless it is made apparent that the jury have been actuated by undue motives. Smith v. Woodfine, 87 Eng. C. L. 660; Richmond v. Roberts, 98 Ill. 480; Royal v. Smith, 40 Iowa, 615; Waters v. Bristol, 26 Conn. 398.

8. The contract of marriage being in effect conceded, there was no error in refusing to submit to the jury the question of its mutuality.

Upon a careful examination of the whole record we find no material error.

By the Court.— The judgment of the circuit court is affirmed.