Fenelon v. Butts

Orton, J. 1. There had been a change of the place of trial, on the ground of prejudice of the judge, from the county of Rock to'the county of Dodge, under the law of 1876, on the 6th day of May, 1S78. The defendant again made application for changing the place of trial, for the same cause, from the county of Dodge, on the 11th day of October, 1880, which was refused on the ground that there had already been one removal for that cause, and only one could be granted. It is unnecessary to decide whether the statute of 1875, under which only one removal could be had, was or was not repealed by the statute of 1876, in which there was no such limitation; for by the — 349 — true construction of section 2625, É. S., no other change ■ of the place of trial could be had after one removal for that cause had been granted. That section, after providing for changing the place of trial on account of the prejudice of the judge, provides further that “ but one change of the place of trial shall be granted to the same side, wider the provisions of this seetionP Previous sections provide for changing the place of trial for other causes. The learned counsel for the appellant contends that this section should he so construed as to allow one removal after this section took eifect, and but one, notwithstanding there had been one removal for the same cause under the provisions of the statute of 1876, repealed by the Eevision. This statutory limitation is-found in nearly all the statutes on the subject since 1858, and it would therefore appear to have been the intention of the legislature to restore the laws of 1858 and 1875, allowing but one removal for this dause in any case; but the language of the limitation, we think, clearly expresses this intention, and means that there should be but one removal for the cause mentioned in this section, and not by the authority and eifect of this section. This is not a question of the retroactive eifect of the section, bait one of construction only. The motion for such removal from the county of Dodge was therefore properly overruled. 2. The testimony as to the condition and circumstances of the plaintiff’s family, and the filthy condition of the jail in which the plaintiff Mrs. Fenelon was imprisoned by the defendant and others, was properly admitted as going to the question of her mental anguish, pain, and the suffering, insult and indignity resulting from her imprisonment, as affecting her actual damages. 3. The court properly allowed the witness Leslie to testify what Hooker said in relation to the threatened second imprisonment of Mrs. Fenelon, for several reasons: (1) Because Hooker had acted as the attorney of the defendant through — 350 — out the proceedings which resulted in her first imprisonment; and whether he was still acting as his attorney when he made the statements imputed to him, and was then conspiring with the defendant for the rearrest and imprisonment of the plaintiff, were questions for the jury, upon which there was at least some evidence. (2) There had been some evidence that the attorney, Hooker, had actively conspired with the defendant in procuring the imprisonment, and therefore his statements relating thereto were admissible to bind his co-conspirator. Hoffman v. Eppers, 41 Wis., 251. (3) The statements of Hooker were made in the presence of the defendant, and while the defendant, at least, was evidently plotting the further imprisonment of the plaintiff; and, if not with his tacit assent, it might have been followed with proof of his express assent, so that what Hooker said on that occasion was proper as being introductory to other evidence, or was admissible under the circumstances, which it was the province of the jury to consider. 4. The affidavit for the supplementary proceedings in which the imprisonment occurred, was admissible. First. Because it was one of the acts of the defendant to be considered in connection with his other acts causing the imprisonment. When the case was befoi’e this court on the former appeal (49 Wis., 342), the present chief justice said in the opinion: “The mere fact that the defendant made the affidavit under the circumstances is not enough to warrant the court in ruling as a matter of law that he was liable for the imprisonment; it should appear that he did something more to bring about or cause the imprisonment;” clearly implying that the making of the affidavit was an act proper to be considered with other acts of the defendant causing the imprisonment. Second. It was proper as showing that the imprisonment was for the benefit of the defendant, so that his subsequent approval of it would, make him liable. • 5. The question to Mrs. Fen&lon, “ Where were you taken — 351 — from that day? ” was in itself proper, although one answer to it might have been complained of as improper,— that she was taken from her own house to the office of Jacobs, the pretended commissioner — an arrest and imprisonment not charged in the complaint as the ground of the action; but it was answered that she was taken from the office of Jacobs, which was proper. The question subsequently put, as to her arrest and being taken to the office of Jacobs by the direction of the defendant, although not proper to establish a distinct liability not charged in the complaint, was proper in order to show the interest, participation and intent of the defendant in the whole proceeding. 6. The plaintiff having waived all exemplary damages, the introduction of the supplementary proceedings by the defendant in order to show his good faith in causing the imprisonment of the plaintiff, and to mitigate the compensatory damages, was properly refused. Whatever may have been the confusion, if not the contradiction, of the decisions of this court on this general question, it was finally put at rest by the able and elaborate opinion of Mr. Justice Lyost in Wilson v. Young, 31 Wis., 574. In that opinion the previous decisions of this court and of other courts were critically examined and reviewed, and the principle brought to the test of reason, and the doctrine in this class of cases was established once for all, that compensatory damages were not subject to mitigation by proof of good faith, provocation, or other mitigating circumstances, but that exemplary damages were. In that opinion, however, a distinction is drawn between compensatory damages for bodily and mental injuries, or injury strictly corporeal and injury to the feelings, and it is held that “ damages for injury to the feelings and exemplary damages both entirely depend upon the malice of the defendant, and these may be mitigated;” and it is further held, “that damages for injury to the feelings are actual or com'pensatory in 'their nature cannot well be doubted.” — 352 — This decision, in the above distinction only, falls short of a settlement of the whole question; and this distinction was afterwards reconsidered and fully withdrawn, by the learned justice who made it, in Craker v. C. & N. W. Railway Co., 36 Wis., 657, and the damages for injury to the feelings are classed strictly and unexceptionally with compensatory damages, and not subject to mitigation any more than any other compensatory damages. These two cases, taken 'together, are conclusive of the whole matter, and the question is no longer an open one for discussion or review in this state. 7. The circuit court committed no error in not directing the jury to find a special verdict under section 2858, R. S., for it was not requested by either party. The record shows that the learned counsel of the appellant requested the submission of certain questions prepared by himself, and no other, and this the court was not required by law to do. 8. These questions, considered as instructions asked by the defendant, the court properly refused to submit to the jury; for they were all defective in not containing all of the essential requisites upon which the liability of the defendant depended. Considered as instructions, they were, substantially, “ Did the defendant order, advise, direct, request or instigate the imprisonment?” or, “If the jury find that the defendant did not order, direct or instigate;” leaving out many other acts for which the defendant might have been equally liable, as aiding, assisting, encouraging, countenancing and approving; and, treated as instructions, they were embraced in the general charge, with these additional requisites of a culpable participation in the trespass. 9. The instruction asked in respect to matters of mitigation was properly refused, as we have already shown. 10. The instruction that the jury should find for the defendant was correctly refused, for there was an abundance of evidence to go to the jury tending to show the defendant liable. — 353 — • 11. The general charge appears to have been fair, full, impartial and correct, and is not subject to the exceptions and criticisms found in the brief of the learned counsel of the appellant, and will not be more specially noticed except that part of it which asserts the liability of the defendant for “approving of the imprisonment if it was for his benefit;” and this seems to be correct, and sustained by the authorities cited in the brief of the counsel for the respondent. 2 Hil. on Torts, 293; Brown v. Perkins, 1 Allen, 89; Judson v. Cook, 11 Barb., 642. 12. We cannot say that the verdict is excessive. This double arrest and imprisonment without lawful authority, and the taking away from her home and family, and incarcerating in a filthy cell, this wife and the mother of a nursing babe, was a very great personal outrage, insult and indignity, which would necessarily impair her bodily health, and most deeply wound her feelings, and produce great mental anguish, for which $1,000 would not seem to be inadequate by reason of being too large an amount. By the Court.— The judgment of the circuit court is-affirmed.