Parmentier v. McGinnis

KeRWIít, J. The contention of appellant is that the exhibition in question was a fight within the provisions of sec. 4520, Stats., which provides in effect that any person who shall by previous arrangement or appointment engage in a fight with another person for the possession of any prize, belt, or other evidence of championship, or for any other cause, shall be punished, etc.; and if not a fight within the meaning of this statute, it was a fight by mutual consent, which would make each participant liable to the other for actual damages received in the absence of the statute. But this question was squarely submitted to the jury and answered in the negative, the jury holding that the exhibition was not a fight. The main question, therefore, on this appeal is whether the answer of the jury to the second question [600] is supported by tbe evidence. We are satisfied from a careful examination of tbe record that there is an abundance of evidence to support tbis finding. Exception is taken by appellant to some portions of tbe charge on tbis question, but •we find no error in tbat regard. Error is also assigned by counsel for appellant on refusal to give instructions asked, tbe formation of the verdict, and in admission and exclusion of evidence. We find no error under these beads. Tbe exhibition in controversy seems clearly to come within tbe finding of the jury as a .;uere boxing exhibition or match and not a prize fight, and this was a question of fact for tie jury. State v. Olympic Club, 46 La. Ann. 935, 15 South. 190, 24 L. R. A. 452; State v. Purtell, 56 Kan. 479, 43 Pac. 782; Seville v. State, 49 Ohio St. 117, 30 N. E. 621, 15 L. R. A. 516; People v. Taylor, 96 Mich. 576, 56 N. W. 27. Counsel for appellant, however, vigorously attack the. verdict of the jury on the ground that the findings returned show that the jury were actuated by passion or prejudice. This contention is based, chiefly, upon the findings to the first and eleventh questions of the special verdict. Whether the death of', the plaintiffs son was caused by exhaustion occasioned by the contest is not very material, since the finding of the jury to the second question, namely, that the exhibition was not a fight, is supported by the evidence. The same is true as regards the answer to the eleventh question, because the answer to the second question relieves the defendants from liability, and it is quite obvious that the jury were influenced by the conclusion reached on the second question and the evidence regarding other questions of the special verdict, therefore were not actuated by passion or prejudice. We think, taking the verdict as a whole, it cannot be said that the court below was wrong in finding that the jury were not actuated by passion or prejudice, therefore the appellant’s contention under that head cannot be sustained. The trial court, who [601] was in better position than this court to judge respecting the question of passion, prejudice, and fairness of the jury, oyer-ruled appellant’s contention in that regard, and was of the opinion that the verdict of the jury was the result of honest judgment, and the court below was therefore justified in refusing to set it aside. Lines v. Milwaukee, 147 Wis. 546, 133 N. W. 592. The record shows that the case was carefully and fairly tried below and no prejudicial error committed. The judgment must therefore be affirmed. By the Court. — The judgment is affirmed.