Wiese v. Riley

SiekeceeR, J. The defendant alleges numerous errors in the rulings by the court in the admission and rejection of evidence against his objection. Of these the following are material and require attention: The plaintiff was permitted to explain why he failed to vacate the dwelling, a government building, as requested by the defendant, his superior, who had notified the plaintiff that he must vacate it at the time the defendant discharged him from the government service. This matter was pertinent under defendant’s answer, which called on the plaintiff to explain his failure to vacate the dwelling pursuant to the notice given him by the defendant. It developed that the plaintiff could not comply with the direction in view of sickness and a death in his family. Exception is urged to the ruling permitting the witness Everest and others to testify to the words spoken on the occasion in question by giving the substance of the words spoken by the defendant as they recollected them, after they had declared that they did not recall the exact words. This evidence gives in effect and substance the words uttered and tends to support the charge made and to explain -what was said by the parties, and hence was properly received. After an examination of the other exceptions to rulings on evidence we find no prejudicial ruling in respect thereto, nor does the record disclose improper rulings as to the extent to which the court allowed leading questions to be answered. It is not deemed necessary to discuss these exceptions in detail. It is claimed that the defendant as the superior officer over plaintiff was in duty bound to ascertain whether the plaintiff had wrongfully taken or stolen any tools, the property of the government, and that upon the occasion in question he was permitted and required to state, if he believed that the plaintiff [644] had tools belonging to the government in his possession, that they must be returned before he would order payment of the plaintiff’s salary, and therefore that the words aetually uttered by the defendant regarding the subject were privileged. If it be assumed that the defendant had this duty to perform, yet that did not warrant him to utter a false charge concerning the plaintiff, to the effect that he had stolen tools or that he was a thief. We perceive nothing in the situation and relation of the parties that could justify the defendant in uttering a charge of this nature in order to comply with his duty. The facts and circumstances are barren of a well based claim that the plaintiff had any such property in his possession and present no basis for the claim that the defendant uttered the words upon a privileged occasion and hence was exempted from liability therefor. Numerous exceptions to instructions given by the court are alleged without any argument being presented to show wherein the instructions excepted to are erroneous, except the claim that the evidence failed to present any issue for determination by the jury to which the instruction could apply, and that the jury were confused and misled by the instructions given. An examination of the case has convinced us that the evidence presented issues embraced in the charge of the court and that the instructions given were applicable and stated the law correctly. The claim that the defendant was prejudiced by the submission of the question of punitory damages to the jury and by the disallowance thereafter of a recovery of the amount of such damages as allowed by the jury is not well founded. We find nothing in the record indicating that this affected the defendant’s rights adversely and must therefore disregard it. This claim of prejudice is without substance. The statute, sec. 2829, in words and spirit declares that “ . . . all irregularities and errors (shall) be deemed inconsequential in the absence of reasonably clear indications that the adverse party [645] was prejudiced thereby” (Oborn v. State, 143 Wis. 249, 279, 126 N. W. 737), and should be disregarded unless, “after an ■examination of the entire action or proceeding, it shall appear that the error complained of has affected the substantial rights of the party seeking” relief therefor. Sec. 3072m, Stats. (Laws of 1909, ch. 192). We find no reversible error in the record. By the Court. — Judgment affirmed.