In Schulze v. Kleeber (1960), 10 Wis.2d 540, 103 N.W.2d 560, in discussing this rule, we pointed out a possible exception suggested in Odya v. Quade (1958), 4 Wis.2d 63, 90 N.W.2d 96.Summary of this case from Voeltzke v. Kenosha Memorial Hospital
May 3, 1960 —
June 7, 1960.
APPEAL from a judgment of the circuit court for Sauk county: BRUCE F. BEILFUSS, Circuit judge of the Seventeenth circuit, Presiding. Affirmed in part; reversed in part.
For the appellant there was a brief by Vaughn S. Conway and Kenneth H. Conway, both of Baraboo, and oral argument by Vaughn S. Conway.
For the respondents there was a brief by Langer Cross of Baraboo, and oral argument by Clyde C. Cross and H. M. Langer.
On March 27, 1959, Emil Schulze brought an action for damages for personal injuries against Hilbert S. Kleeber and Virgil C. LeMoine. Schulze is a resident of the city of Reedsburg; Kleeber is the mayor, and LeMoine a city police officer. Schulze's alleged injuries occurred on the evening of August 25, 1958. A meeting and public hearing before the city council was in process in the council chamber, and Schulze fell, or was thrown to the sidewalk just outside the council chamber after being ejected from it by LeMoine. LeMoine acted at the direction of the mayor.
The council was in the process of considering a proposal to change the zoning of several residential lots so as to permit the construction of oil-storage tanks thereon. Schulze and others opposed the measure. After the meeting had progressed for a time, Schulze addressed the mayor, and the mayor, after being advised by the city attorney that he had power to do so, called LeMoine in and directed him to remove Schulze. LeMoine, who weighed 278 pounds, laid hold of Schulze, who was seventy-four years of age, and pushed or carried him five to 10 feet to the door. Outside the door, there was a sloping platform, about 26 inches deep, and a step, 11 inches deep, led to the sidewalk. The two men landed on the sidewalk, Schulze first, and LeMoine second.
Several witnesses were called by each party. There was testimony tending to show that Schulze's actions in the meeting were not such as to disturb its orderly progress, and that the mayor arbitrarily ordered him to "shut up and sit down" when Schulze was attempting to make his objections heard. On the other hand, there was testimony tending to show that Schulze's interruptions and continued conversation with those around him did disturb the orderly progress of the meeting, and gave the mayor cause to have him removed. There was testimony tending to show that the mayor ordered LeMoine to "throw" Schulze out; that LeMoine, virtually without warning, got behind Schulze and picked him up with one arm below Schulze's chin, carried him to the door without Schulze's feet touching the floor, and threw him out so that Schulze was propelled forward several feet above the sidewalk and landed on it face down. On the other hand, there was testimony tending to show that LeMoine first directed Schulze to leave, and attempted to take him by the arm, but he brushed LeMoine's hand away; that LeMoine then went behind Schulze and took hold of him with LeMoine's left hand on the outside of Schulze's left arm and LeMoine's right hand under Schulze's right arm, raised Schulze from the chair, and pushed him to the door; that Schulze had his feet on the floor, and leaned back against LeMoine to prevent being ejected; that about at the doorway, Schulze turned partly around, grabbed the shoulder strap on LeMoine's uniform, and tore it loose; that the officer then told Schulze he was under arrest; that about that time, Schulze missed the first step down, and LeMoine attempted, but was unable, to keep Schulze from falling, and that as a result both men fell forward.
The extent of Schulze's injuries was not conceded. He pointed out a bruise on his leg at the time of the fall; his physician found other abrasions the next morning; he introduced testimony tending to show that an arthritic condition in his neck was aggravated by the fall, and that a number of unpleasant and disabling effects resulted therefrom.
The complaint originally alleged that the conduct of each defendant constituted gross negligence. During the course of the trial, plaintiff moved to amend by striking out all words charging gross negligence, and the demand for punitive damages. After a discussion, the amendment was permitted upon the condition, requested by the defense, that it have the right to present all the affirmative defenses to ordinary negligence such as contributory negligence, and the like.
The form of special verdict reflected, in part, the theory that defendants were charged with negligence and, in turn, charged plaintiff with contributory negligence. In the answer to the first question, the jury found that Kleeber did not exercise bad faith in ordering that Schulze be removed. The jury answered "Yes" to the second question: "Did Virgil C. LeMoine use more force than was reasonably necessary under the circumstances then and there existing in removing Emil Schulze from the city council chambers on August 25, 1958?" In answer to the third question, the jury found that such excessive force was not a cause of the injury. The jury answered "Yes" to the fourth question: "Was Emil Schulze negligent in resisting his removal from the city council chambers on August 25, 1958?" and answered the fifth question, that such negligence was a cause of the injury. The jury was asked in the sixth question to compare the negligence of LeMoine and Schulze. In view of the previous answers, the jury was not required to, and did not answer it. By the seventh question, the jury was asked to assess Schulze's damages (a) for medical expense, (b) for pain and suffering to date, (c) for loss of wages to date, and (d) for future disability. The special verdict contained a notation with respect to medical expense "(Answered by the court in the amount of $465)." The jury, however, wrote in the word "None" after this notation, and wrote "None" after each of the other subdivisions of the damage question.
Plaintiff moved for a new trial on the alleged ground that the verdict was contrary to law and contrary to the evidence, and that a new trial would be in the interest of justice. The motion also asserted that the jury's answers to the damage question were opposed to the undisputed testimony, and contrary to the court's instructions. The court, however, granted the motion of defendants for judgment on the verdict. Judgment was entered accordingly on September 1, 1959, and plaintiff appealed.
1. Sufficiency of evidence. It will be apparent from the foregoing statement of facts that the evidence presented issues for the jury as to whether (1) Kleeber acted in bad faith, (2) LeMoine used excessive force, and (3) such excessive force caused Schulze's injuries. We find evidence sufficient to sustain each answer, subject to the following comment as to the third.
The jury having found that excessive force was used, the negative answer on causation can be sustained only upon the analysis that the excessive force had ceased to operate when LeMoine and Schulze reached the door; that Schulze fell, as testified by LeMoine, when he lost his balance solely as a result of a secondary fracas initiated by Mr. Schulze. Although we consider this a question to be resolved by the jury, it is a close question, and deserves scrutiny in the interests of justice.
2. Perversity. Do the jury's answers to the damage question compel us to say as a matter of law that the verdict was perverse? The existence and extent of injury caused by Mr. Schulze's fall were largely questions for the jury. They may properly have considered that his damages were minor. Because Schulze admittedly sustained at least some bruises and sought medical attention for them, a wholly negative answer as to damages could not, however, be justified. "It has been held that a jury's violation of instructions by not answering damage questions in a verdict where they have answered other questions so as to determine that there is no liability does not compel a trial court to treat the verdict as perverse." Odya v. Quade (1958), 4 Wis.2d 63, 73, 90 N.W.2d 96. See Dickman v. Schaeffer, post, p. 610, 103 N.W.2d 922. Although as suggested in Odya v. Quade, supra, we would now be inclined to sustain an order granting a new trial on the ground of perversity where based on a failure to answer damage questions, the circuit court did not grant a new trial here.
3. Dismissal as to defendant Kleeber. The verdict was not perverse, and the answer that Kleeber did not act in bad faith is sustained by the evidence when viewed in the light most favorable to the verdict. There has been no argument here that the finding is not legally sufficient to sustain the judgment of dismissal as to Kleeber. That portion of the judgment will therefore be affirmed.
4. The theory of the case against LeMoine. Plaintiff does not challenge the proposition that the mayor's order gave LeMoine the right to use force to remove Mr. Schulze from the council chamber. He was privileged to use whatever force was reasonably necessary to effect removal. If he used more force than reasonably necessary, it constituted an assault and battery. Kalb v. Luce (1938), 228 Wis. 519, 279 N.W. 685, 280 N.W. 725; Restatement, 1 Torts, pp. 153, 189, 309, 336, secs. 71, 82, 133, 144; 4 Am. Jur., Arrest, p. 52, sec. 73; 4 Am. Jur., Assault and Battery, p. 169, sec. 77. Contributory negligence was not a defense. 6 C. J. S., Assault and Battery, p. 829, sec. 24. For some reason (perhaps the type of insurance coverage available to defendants, or some similar consideration), the parties treated the use of excessive force as merely negligent conduct, and considered that the comparative-negligence statute would apply if plaintiff was negligent and the injury was caused by the conduct of both.
We consider that the questions in the special verdict as to Mr. Schulze's negligence in resisting removal, and as to comparison of negligence were surplusage. Once the jury determined that LeMoine used excessive force, the only remaining question pertinent to liability was whether the excessive force caused the injury.
We note, of course, that plaintiff virtually agreed to the submission of the case in this fashion, and has not questioned it in the trial court, nor here. He is not entitled to any relief as a matter of right.
5. Discretionary reversal. We have observed that while one version of the facts would support the jury's findings that LeMoine used excessive force, but it was not causal, the fact question is extremely close. Officer LeMoine was a very heavy man, and plaintiff was advanced in years. LeMoine propelled Schulze only five to 10 feet before reaching the door. The jury must have considered that LeMoine used excessive force in so doing, but if their negative answer as to cause is consistent, they must have found that the excessive force was suddenly dissipated at the door. The questions in the special verdict as to Schulze's negligence and the instruction that if his conduct "was such that he as an ordinarily reasonable person should have anticipated that his conduct would probably result in injury or harm to himself, he was negligent" may have focused attention on whether Schulze would have been hurt if he had not resisted, rather than on the crucial question of whether the excessive force caused his injury. He did have a privilege to defend himself against the use of excessive force. Restatement, 1 Torts, sections above cited.
If the jury had found that LeMoine did not use excessive force, we would probably not disturb the result. But under all the circumstances, and assuming that excessive force was used, as found, it appears probable that justice has miscarried and in our discretion under sec. 251.09, Stats., we reverse the judgment of dismissal as to LeMoine. There should be an amendment of pleadings so that the issues will be framed in terms of intentional tort, and a new trial of such issues. Because the judgment awards a combined sum as costs for both defendants, there must be a new taxation of costs in favor of defendant Kleeber alone so that such figure may be inserted in the judgment in his favor.
By the Court. — Judgment reversed, in so far as it dismisses the complaint as to Virgil C. LeMoine and awards costs; cause remanded for further proceedings not inconsistent with the opinion filed herein. In all other respects, the judgment is affirmed. No party to tax costs in this court.