Di Benedetto v. Milwaukee Electric Railway & Light Co.

Siebeceee, J. Tbe defendant contends tbat tbe circuit court erred in affirming tbe order of tbe civil court granting a new trial. It is claimed tbat tbe civil court erroneously granted tbe new trial upon alleged inconsistencies in tbe jury’s answers to questions 2 and 4. It is manifest tbat tbe new-trial was not granted by tbe trial court in its discretion or because tbe court entertained an opinion tbat justice bad not been done in compensating tbe plaintiff for tbe injuries be bad sustained. Tbe verdict found separately tbe items of compensatory and punitory damages, so tbat tbe court might award judgment of either or both amounts, according to plaintiff’s rights as established by tbe facts found by tbe jury in their special verdict. Tbe defendant asked tbat judgment be awarded tbe plaintiff upon tbe verdict for tbe amount of tbe compensatory damages and costs of tbe action. Tbe plaintiff objected to sucb judgment and made a motion in tbe alternative, requesting tbat tbe court change tbe answer of tbe jury [570] to question 4 from “No” to “Tes,” and, in tbe event of a denial of such, request, that the court grant a new trial. The court refused to change the jury’s answer to this question as requested, but granted a new trial upon the ground stated. It is obvious from the court’s ruling and the grounds as- . signed therefor that he concluded that if the jury, under the evidence in the case, found that the plaintiff was wrongfully ejected from the car by the conductor, they must find that the conductor acted with such cruelty, vindictiveness, and malice as to render defendant liable for punitory damages. We are persuaded that the trial court and the circuit court on appeal erred in this respect. The evidence in many respects is in sharp conflict. The jury evidently believed that the conductor provoked the altercation with the plaintiff by using abusive language toward him when seeking to collect the car fare, and that the plaintiff’s conduct did not call for his ejection from the car. This does not necessarily imply, however, that all the plaintiff testified to as to the manner of his ejection must be taken as true. The evidence on this phase of the affair is in sharp conflict. It was witnessed by persons on the car, who testified in the case, and from the whole evidence the jury had good grounds to conclude that the conductor acted wrongfully in the matter, but that there were no such aggravated acts as the plaintiff testified to and that the conductor’s acts were free from cruelty and evinced no vindictiveness or malice. The jury were not compelled to believe in their entirety the statements of either of the participants. Hopkins v. C., M. & St. P. R. Co. 128 Wis. 403, 107 N. W. 330. The facts and circumstances adduced in the evidence tend to support the conclusion that both parties became actively involved in the affray before it concluded and that both of the participants became aggressive combatants before it ended. In the light of such a situation the jury were justified in finding that the plaintiff’s ejection from the car was free from such aggravated acts as amounted to cruelty, and that the conductor did not act [571] maliciously in the matter. The facts of vindictiveness and malice must expressly appear and are not to be presumed from the fact that the plaintiff was wrongfully ejected from the car. Their existence is one of inference for the jury from the whole case and not for the court as matter of law under the facts and circumstances adduced in evidence. The allowance of punitory damages in such cases is never a matter of right. As stated in Topolewski v. Plankinton P. Co. 143 Wis. 52, 71, 126 N. W. 554: “In all cases the court should decide whether, in any reasonable view of the evidence, punitory damages would be proper and, if so, to then instruct the jury what elements of fact are requisite to justify such damages and make it plain that whether to allow them or not is left to their sound discretion.” We are led to the conclusion that the jury were well justified, under the evidence, in answering question 4 in the negative, that, in the light of the facts and circumstances of the case, such answer in no way conflicts with an affirmative answer to question 2, and that the trial court erred in holding that there was such conflict in the verdict as required a new trial. The circuit court on appeal should have corrected such error and have awarded plaintiff judgment for the amount of the compensatory damages allowed by the jury, with costs. By the Oourt. — The order appealed from is reversed, and the cause remanded with directions to award judgment as indicated in this opinion.