November 8, 1950 —
December 5, 1950.
APPEAL from a judgment of the municipal court of Racine county: ELMER D. GOODLAND, Judge. Affirmed.
For the appellant there was a brief by Wilbershide Baumblatt of Racine, and oral argument by Leonard P. Baumblatt.
Vilas H. Whaley of Racine, for the respondent.
This action was commenced on September 30, 1947, by Nettie Mossak, plaintiff, against Rodger Pfost, an infant, by his guardian ad litem Leslie C. Pfost, defendant, for damages growing out of an assault.
From a judgment entered on the 15th day of February, 1950, dismissing plaintiff's complaint with costs to defendant in the sum of $148.78, plaintiff appeals.
Prior to October 31, 1945, three boys had damaged plaintiff's property in a Halloween prank. Plaintiff claimed that she recognized one of the boys as defendant and that he stated that what was done that night was nothing compared with what he was going to do the next night.
The following night plaintiff had her fourteen-year-old daughter hide in some rosebushes. She gave her a garden hose and a whistle and instructed her to blow the whistle if anyone came on the lawn. According to plaintiff's story three boys approached and the girl, following instructions, blew the whistle; plaintiff turned on the water. Defendant grabbed the girl, and held the hose so that the water went into her face and mouth. There is a conflict in the testimony but plaintiff asserts that defendant kicked her in the left leg; that she fell to the ground; that she went to the house and got a broomstick and hit defendant three or four times until he released the girl and ran away.
Defendant claims that he walked past plaintiff's home, made a move as if to go upon the porch; that when he was half way past plaintiff's home the girl blew the whistle and water started flowing from the hose; that he attempted to take the hose away and started sprinkling her; that plaintiff beat him with a broomstick, that he then kicked plaintiff and ran away.
As a result of the kick plaintiff claimed injury to her leg, causing her pain for approximately two years, loss of work, and considerable medical expense.
The jury found in answer to a special verdict that defendant kicked plaintiff in self-defense, using no more force than necessary, and that plaintiff suffered no damage.
The plaintiff contends (1) that the jury's finding that defendant acted in self-defense is not sustained by the evidence; (2) that there was error in the instructions in that the court improperly placed the burden of proof that the defendant did not act in self-defense upon the plaintiff; and (3) that the jury's finding that plaintiff suffered no damages renders the verdict perverse.
(1) We have set forth enough of the conflicting testimony of the parties to demonstrate that it made an issue for the jury. Obviously, the jury believed defendant's testimony, corroborated by that of a neighbor, that he made no assault upon plaintiff until she had hit him over the back with a club. The familiar rule, often declared by this court, that where there is credible evidence to support a finding of a jury we may not disturb it, needs no citation of authorities.
(2) The instruction was erroneous. But we may not consider the error; it was not specifically pointed out by the plaintiff in her motions for a new trial as a ground therefor. Norton v. State, 129 Wis. 659, 109 N.W. 531.
(3) We cannot say that the jury's findings that the defendant acted in self-defense and that he used no more force than was reasonably necessary to defend himself were not the result of honest judgment. Therefore, its finding as to damages has no weight in the consideration of a claim of perverseness. Schuster v. Bridgeman, 225 Wis. 547, 275 N.W. 440. In the consideration of that question some weight must also be given to the trial judge's opinion. Olsen v. Brown, 186 Wis. 179, 202 N.W. 167. He found no evidence of perversity; nor do we.
Obviously the jury refused to accept plaintiff's testimony concerning her alleged injury. Although she claimed to have been treated by several doctors, none of them was called to testify. Nor did she offer any other corroboration of her claim.
By the Court. — Judgment affirmed.