Farley v. Briebach

Kerwin, J. But two questions need be considered upon this appeal: (1) Did the plaintiff get peaceable possession of the card? and (2) Did the defendants by force take it from the possession of plaintiff, and in so doing commit an assault and battery? Counsel for defendants frankly says in his brief: “If this court thinks the evidence shows no justification, then the verdict should stand.” We think it very clear that the evidence shows no justification. The plaintiff entered the shop of defendants, and publicly and peaceably got possession of the card under claim of right. He was an officer of the union and was ordered to take the card, for what rea [233] son is not material. There is evidence that, prior to the time plaintiff took the card, the secretary of the union notified the defendants to deliver the card, that they had forfeited the right to have it in their shop. Whether the defendants had forfeited their right to the card or not does not alter the situation. It is sufficient that the union claimed the right to remove it, and that plaintiff went to the shop to get possession of it, and did get possession of it peaceably. There is no evidence that plaintiff was resisted in any way in his attempt to get peaceable possession of the card. After he got peaceable possession and was leaving the shop the evidence shows that he was attacked by the defendants, assaulted, and beaten in their efforts to take the card from his possession by force. The evidence shows that he was quite severely beaten, that one of his teeth was knocked out, his lip split, and his eye blackened. One of defendants testified: “I reached for the card, he tried to keep it, and I tried to take" it, and I saw I could not get the card, and I hit him. He didn’t let go of it, and I hit him again.” These undisputed facts leave no room for doubt that the assault and battery was wholly unjustifiable. Monson v. Lewis, 123 Wis. 583, 101 N. W. 1094; Winter v. Beebe, 126 Wis. 379, 105 N. W. 953. By the Court. — The iudgment of the court below is affirmed.