Opinion
No. 186.
Argued September 14, 1970. —
Decided October 6, 1970.
APPEAL from a judgment of the circuit court for Barron county: ALLEN KINNEY, Circuit Judge. Affirmed.
For the appellant there was a brief and oral argument by Robert Zum Brunnen of Spooner.
For the respondent there was a brief by Cameron, Shervey Weisel of Rice Lake, and oral argument by Robert O. Weisel.
This is an action for assault and battery. The trial court granted the plaintiff's motion for a directed verdict as to liability and the jury returned a verdict for compensatory damages.
The plaintiff Jerry Crotteau and the defendant Clifford Karlgaard were both employees of the Lazy A Potato Ranch, located near Rice Lake, Wisconsin. Both had been employed there for several years.
On October 12, 1968, both parties were engaged in the harvesting of potatoes. The plaintiff's job was to operate a tractor that was pulling a potato harvester. There was a second tractor driven behind the harvester by Clarence Jacobson which was used to push the harvester in case it got stuck in the mud. The defendant's job. was to ride on the back of the harvester and, in case plaintiff's tractor became stuck along with the harvester and Jacobson could not free them, then defendant was to get a third tractor which would be attached to the front of plaintiff's tractor to help pull them out.
Both parties had worked all day, and because the field was somewhat muddy plaintiff's tractor was stuck several times during the day. At about 10 p. m. in the evening the harvester was stuck in the mud. Jacobson was pushing with his tractor and plaintiff was pulling with his. Defendant had gone to get the third tractor to help and just as he moved this tractor to a position about five feet in front of plaintiff's tractor the harvester became freed, causing the front wheels of plaintiff's tractor to rear into the air as he got traction and began pulling ahead. When plaintiff saw defendant's tractor immediately ahead of him he yelled to the defendant, "get the hell out of the way you dumb son of a bitch."
Defendant got his tractor out of the way and parked it. As he was walking back to his position on the harvester he passed the side of plaintiff's tractor, shook his finger at the plaintiff and yelled an obscenity. Plaintiff did not hear what he said.
Plaintiff continued to operate his tractor pulling the harvester, but stopped a few minutes later and got off. He started walking back toward the defendant who then got off the harvester and came to meet plaintiff. When the two met, plaintiff pointed toward his tractor and said, "if you want to drive the son of a bitch, go ahead and drive it." At this point defendant struck the plaintiff on the jaw, knocking him to the ground. After knocking him down defendant said something to the effect of "stay on the ground, stay on the ground or I will give you another one just like it."
Defendant then walked back to the harvester and plaintiff got up and returned to his tractor. They continued the harvesting until the day's work was completed, approximately twenty minutes later.
As a result of being struck, plaintiff sustained a fractured jaw and brought this action for damages. The action was tried to a jury and at the close of all the evidence plaintiff's counsel moved for a directed verdict on the issue of liability. The trial court granted the motion and submitted only the question as to damages to the jury, which awarded plaintiff compensatory damages in the sum of $2,877.05. Punitive damages were not asked for nor submitted to the jury. Plaintiff moved for entry of judgment on the verdict and defendant moved for a new trial. Judgment was entered on the verdict. The defendant, Clifford Karlgaard, appeals.
The sole issue is whether the trial court should have directed a verdict on the issue of liability.
The rule as to directing verdicts has recently been stated in Zillmer v. Miglautsch (1967), 35 Wis.2d 691, 698, 699, 151 N.W.2d 741, as follows:
"A case should be taken from the jury and a verdict directed against a party:
"`". . . when the evidence gives rise to no dispute as to the material issues or only when the evidence is so clear and convincing as reasonably to permit unbiased and impartial minds to come to but one conclusion."' Anderson v. Joint School Dist. (1964), 24 Wis.2d 580, 583, 129 N.W.2d 545, 130 N.W.2d 105, citing Smith v. Pabst (1940.), 233 Wis. 489, 288 N.W. 780, and Rusch Sentinel-News Co. (1933), 212 Wis. 530, 533, 250 N.W. 405.
"Also:
"`A verdict ought to be directed if, taking into consideration all the facts and circumstances as they appear in evidence, there is but one inference or conclusion that can be reached by a reasonable man.' Milwaukee v. Bichel, ante, p. 66, 150 N.W.2d 419."
The defendant Karlgaard does not dispute the fact that he struck and injured the plaintiff. He does contend that he acted in self-defense so as to justify his actions and that evidence of self-defense was sufficient to permit the matter to go to the jury.
Self-defense has been defined in Wis J I — Civil, Part II, 2006, which we believe to be an accurate statement of the law, as follows:
"Self-defense is the right to defend one's person by the use of whatever force is reasonably necessary.
"If the defendant reasonably believed that his life was in danger or that he was likely to suffer bodily harm, then he had a right to defend himself (and stand his ground) in such a way and with such force as under all the circumstances he at the moment honestly believed was reasonably necessary to save his life or to protect himself from bodily harm.
"By reasonable belief is meant such belief as a person of ordinary intelligence and prudence who was in the position of defendant would have under the circumstances existing at the time of the alleged offense. In determining whether the particular force used by the defendant was reasonably necessary, you should consider the fact that the defendant had the right to act on appearances, the amount of force exerted by the defendant, the means or instrument by which it was applied, as well as the strength of the plaintiff and the defendant and their difference in age (and sex).
"The defendant who alleges that he acted in self-defense has the burden to satisfy you by the greater weight of the credible evidence to a reasonable certainty that he reasonably believed that any forceful act of his was necessary to prevent any impending injury."
In discussing the reasonableness of a defendant's belief in the alleged danger, 6 Am. Jur. 2d, Assault and Battery, p. 135, sec. 161, states:
"Reasonableness of belief in danger; effect of mistake.
"In a civil action for assault, the defendant's belief that the plaintiff intended to do him bodily harm cannot support a plea of self-defense unless it was such a belief as a reasonable person of average prudence. would have entertained under similar circumstances. It is not necessary that the danger which gave rise to the belief actually existed; it is sufficient that the person resorting to self-defense at the time involved reasonably believed in the existence of such a danger, and such reasonable belief is sufficient even where it is mistaken. In forming such reasonable belief a person may act upon appearances. In other words, it is sufficient that the danger was reasonably apparent."
Admittedly there was only one blow struck. There is no evidence that the plaintiff at any time struck at the defendant, nor is there any evidence to indicate he intended to strike the defendant. Before self-defense can be used as a justification for a civil assault and battery it must reasonably appear that the defendant was in danger of bodily harm.
At most the plaintiff's conduct toward the defendant constituted oral abuse, which is not sufficient to justify an assault and battery.
"In the absence of a statute providing otherwise, mere words or acts that do not amount to an assault, even when spoken or performed for the purpose of provoking an assault, are no defense to a civil action on the ground of assault, although such provocation may have a mitigating effect with regard to the damages to be imposed." 6 Am. Jur. 2d, Assault and Battery, pp. 128, 129, sec. 151.
In Metzinger v. Perry (1928), 197 Wis. 16, 20, 221 N.W. 418, this court said:
"The court charged the jury to the effect that if they found that plaintiff used abusive or insulting language toward Perry at the time of the striking, then such language might be considered in mitigation of plaintiff's compensatory damages. This was error, for such evidence would be proper for consideration only on the question of punitory damages. Karney v. Boyd, 186 Wis. 594, 597, 203 N.W. 371. This went only to the question of damages and is immaterial."
We are of the opinion that there is no evidence in the record which could give rise to a reasonable inference that appellant acted in self-defense and that the evidence is sufficiently clear and convincing so as to reasonably permit but one conclusion. The trial court did not err in directing the verdict on the issue of liability.
By the Court. — Judgment affirmed.