Sletten v. Madison

99 N.W. 1020, 122 Wis. 251, 1904 Wisc. LEXIS 153
CourtWisconsin Supreme Court
DecidedJune 10, 1904
StatusPublished
Cited by6 cases

This text of 99 N.W. 1020 (Sletten v. Madison) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sletten v. Madison, 99 N.W. 1020, 122 Wis. 251, 1904 Wisc. LEXIS 153 (Wis. 1904).

Opinion

Dodge, J.

The most obvious of the errors assigned is presented by an instruction to the jury to include as an element of damage to be compensated “loss of reputation.” Respondent’s counsel offers neither argument nor citation in support of the proposition that loss of reputation is an element of the general damages resulting from an assault, even when accompanied by sexual solicitation; indeed, seems to concede the contrary, but urges'that the instruction could not injure defendant, because there was no evidence of any loss of reputation. The conclusion is non sequitur. Instruction to the jury to make allowance for such an element was a direct invitation to them to draw on conjecture or imagination as to its existence in absence of any evidence, and for that reason alone would be erroneous, even if the element mentioned would be proper as special damages when supported by the 'proofs. Hickey v. C., M. & St. P. R. Co. 64 Wis. 649, 26 N. W. 112; Spencer v. C., M. & St. P. R. Co. 105 Wis. 311, 81 N. W. 407; Musbach v. Wis. Chair Co. 108 Wis. 57, 84 N. W. 36.

The general question whether injury to reputation is ever a legitimate element of damage in an action for assault is not so simple as counsel’s concession would seem to indicate, nor is it without authority, albeit somewhat conflicting. This [253]*253court bas held that in an action for assault in ejecting plaintiff, a ms^ from a car, error was committed in directing allowance for injury to reputation and to social and professional standing as a separate element of damage (Schmitt v. Milwaukee St. R. Co. 89 Wis. 195, 61 N. W. 834) ; also that it was not error to, allow to a boy whose legs were both cut off, through negligence, compensation for mortification and anguish of mind suffered by reason of the mutilation and the fact that he might “become an object of curiosity or ridicule among his fellows,” such damage being confined to the mental pain, and not being allowed for actual loss of standing or popularity in the community (Heddles v. C. & N. W. R. Co. 77 Wis. 228, 46 N. W. 115). Again, in Barnes v. Martin, 15 Wis. 240, 246, it was held that public odium resulting from exposure at the trial of the transactions involved in an assault could not be considered. In Hawn v. Banghart, 76 Iowa, 683, 685, 39 N. W. 251, — an action for seduction with resulting pregnancy — loss of social standing was held to be a necessary and uniform result of such facts, and therefore a proper element of damage. In Chicago & N. W. R. Co. v. Williams, 55 Ill. 185, 190, for ejection of plaintiff, a colored woman, from the ladies’ car, the element of “disgrace” was held proper to be considered; but whether as a distinct element, or merely as a circumstance affecting the plaintiff’s mental suffering, is not at all clear. In Wolf v. Trinkle, 103 Ind. 355, 357, 3 N. E. 110 — an action for assault with sexual solicitation — the element of injury to plaintiff’s good repute and social standing, in addition to mental anguish and sense of shame, was held proper, there being no discussion,, however, of the distinction between mental anguish and injury to reputation aid social position, the recovery being, supported by decisions in favor of the former class of non-peeuniary injury. In Moyer v. Gordon, 113 Ind. 282, 14 N. E. 476, for wrongful ejection of a tenant, it was held that among the elements of compensatory damages is injury to [254]*254bis pride and social position, tbongb it is hardly apparent tbat the court intended to go further than to authorize compensation for the mental suffering affected by those considerations.

From this resume of authorities, especially those in Wisconsin, it is plain that injury to reputation is by no means a universal or necessary result of assault. This is so even when aggravated by the circumstance of solicitation of a chaste and reputable woman to unlawful sexual intercourse. ■Of course, such circumstance may well be presumed to arouse most poignant sense of humiliation and feeling of disgrace, and the latter is doubtless so uniformly an accompaniment as to be an element of the general damages recoverable, but, if the affair be entirely secret, as it was in this case, it is obvious that no derogation of the plaintiff from her standing in the community usually results. ITence the conclusion is irresistible that without direct allegation of such injury as special damage, supported by proof, there can ordinarily be no recovery for this element of damage in an action for assault. We are not prepared to say that there may not be cases where the assault, especially when associated with attempts upon the chastity of a woman of pure character and good reputation, under circumstances of publicity, may not affect her fair name and her standing in the community to her actual, nay, pecuniary, damage. The proneness of the human mind to suspicion is such that the mere fact of sexual attempt upon a woman may arouse suspicion of conduct or character on her part to have invited it with hope of success, and the fact that she is known to have been so solicited may derogate from the pre-existing belief in her virtue and decorum. We shall not decide in the present case whether that may, under special circumstances of both allegation and proof, ever be an element of special damage in an action for assault. That is not the situation here, for there is neither allegation nor proof of any such facts. The recovery permissible in this [255]*255case was only for those general damages which so customarily accompany an assault that the law presumes them at least in some degree. As we have said, these do not include injury to reputation. Hence we conclude the instruction complained of was error.

Another error assigned is the insufficiency of the general verdict in this case, in the light of the instructions, to support a judgment. It is pointed out that here wrere three distinct and separate assaults and causes of action — one in November, one January 20th, and one January 23 d. The evidence as to each, while substantially that’ of the two parties, was different from that offered with reference to the others. Obviously, the jury might have believed that one or two of these assaults had been committed, but not all, and the individual members of the jury might well have differed in this respect. One juryman may have believed that all three assaults were committed, but that $250 was adequate allowance of damages for the whole, but excessive for any one; another that only the November assault was committed, but still that $250 was proper damages therefor; still other jurymen may have been convinced against the November assault, but believed in the existence of one of those in January; and yet all might have agreed that the plaintiff had suffered some assault at the hands of the defendant for which $250 should be awarded, and no unanimous agreement as to the existence of any one of the assaults or the damages for each. That they might have done this under, the charge of the court is apparent. They were instructed that plaintiff was entitled to recover if the jury found that the defendant did assault plaintiff either on November 15th, January 20th, or January 23d, “or at any one or two or more of these times.” Each of these separate and distinct causes of action might have been sued upon separately, in which case, of course, all of the jury must have agreed upon the facts necessary to a recovery and upon the amount of damages to be awarded for each act. [256]

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Bluebook (online)
99 N.W. 1020, 122 Wis. 251, 1904 Wisc. LEXIS 153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sletten-v-madison-wis-1904.