Webster vs. Moe and another.

soon as the decision in Single v. Schneider became known, the legislature passed ch. 263, Laws of 1873, prescribing what should be the measure of damages for the wrongful cutting of timber, and changing the rule laid down in that case. This law provides that in all actions thereafter commenced in any of the courts of this state to recover the possession of logs, timber, or lumber wrongfully cut from the lands of another, or to recover the value thereof, or damages for such cutting, if the plaintiff succeed, he shall, unless the possession of such property be restored to him, recover as damages the highest market value of such logs, timber or lumber, in whatsoever state or condition the same be put by the party cutting the same be tween the time of such cutting and the time of the trial of the action. This statute is prospective in its language, and perhaps is not necessarily and absolutely controlling in this case, which was pending when it took effect. But still, in view of this legislation, we have no hesitation in affirming the rule of damages laid down by the court below. We are not aware that the principle has been otherwise ruled in this court, and it is certainly conforming the decision in this case to what must be the doctrine in the future. As an original question, there is much reason for saying that this rule only furnishes a just and proper indemnity to the owner for the injury done him in cases of this description. The timber may be cut by the wrongdoer when it is low, and when the owner wishes it to stand in order to give him the benefit of a rise in the market. The value of the timber at the time of the trespass, and interest thereon to the time of trial, would not in that case give him compensation for the injury. And if one chooses to invade the rights and property of another, he cannot complain if the owner waits for a rise in the market and delays bringing his action. Let him make good the loss he has caused such owner by his wrongful act, or cease to interfere with the property of another. In this case there is no claim for any damages on account of the diminished value of the real estate, and the

Peterson vs. Knoble.

highest value of the stumpage intermediate the cutting of the timber and the time of trial, would seem to no more than compensate the plaintiff for the loss he has sustained by the trespass.

By the Court. The judgment of the circuit court is affirmed.

PETERSON VS. Knoble.

GRAHAM LIQUOR LAW. (1) Indefinite complaint; how objection to be taken. (2, 3) Cause of action in favor of wife. Measure of damages. Injury to feelings. (4) Defendant liable when liquor not sold by him in person. EVIDENCE. (5) Minutes of testimony at trial before J. P.; how used in cir

cuit court.

REVERSAL OF JUDGMENT. (6) For admission of irrelevant evidence.

1. In an action under the “Graham Liquor Law" (ch. 127, Laws of 1872), the complaint after alleging the intoxication of plaintiff's husband caused by liquors sold to him by defendant, further alleges (in the language of the statute) that in consequence of such intoxication plaintiff "has been injured in person, property and means of support," to her damage, etc. Held,

(1.) That the court did not err in overruling a general objection to all evidence in support of the complaint, or in denying a motion for a nonsuit on the ground that the complaint did not state a cause of action.

(2.) That defendant's remedy was by a motion to have the complaint made more definite and certain; and such a motion, if made, should have been granted.

2. Where an intoxicated husband, without actual violence, but by threatening and abusive language and intimidation, drove his wife out of the house, and kept her out for several hours: Held, that there was a physical injury and suffering sufficient to sustain an action under said stat ute against the liquor seller; and, the action being thus sustained, the wife may recover, as a part of her actual damages, for the injury to her feelings and the indignity suffered by her.

3. It was not error, therefore, in such a case to instruct the jury that the damages which the wife might recover were "such as they might consider a just compensation to her for the injury to her feelings and for the indignity offered to her."

Peterson vs. Knoble.

4. It made no difference in defendant's liability in such a case, whether the liquor was sold by him in person, or by a bar-tender in his employ.

5. The minutes taken by a justice of the peace, of testimony taken on a trial before him, are not independent evidence on a new trial in the circuit court, but may be used as memoranda in the manner pointed out in Schettler v. Jones, 20 Wis., 412, 417, and Riggs v. Weise, 24 id., 545; [i. e., by the justice as a witness in the case, testifying positively that such minutes were made according to the truth of the facts, though the facts therein stated do not remain in his memory.] 6. The admission of merely irrelevant testimony, having no tendency to injure the appellant, held not ground of reversal.

APPEAL from the Circuit Court for Dunn County.

This action was originally brought and tried in justice's court. The complaint alleged that defendant, on the 26th of May, 1872, and divers other days during that month, caused the intoxication of Hans Peterson, who was then plaintiff's husband, by selling or giving away intoxicating liquors; that in consequence of such intoxication, she was injured in her person, property and means of support, and was compelled to provide and care for the wants of her said husband while so intoxicated, to her damage one hundred dollars. The answer was a general denial. On appeal from the judgment of the justice, the defendant objected in the circuit court to receiving any evidence in the case, on the grounds that the justice had no jurisdiction of the subject matter of the action, and that the complaint did not set forth a cause of action. The objection was overruled. Plaintiff's testimony showed that on Sunday, the 26th of May, 1872, the plaintiff's husband was in defendant's saloon with his son and several other persons; that Peterson drank three or four glasses of beer and whiskey; that his son also drank liquor at that time; that the liquor was sold by the defendant's barkeeper; that on the same day Peterson and his son reached home about noon, and were then both intoxicated; that while the plaintiff was talking to her son, her husband, being intoxicated, became angry, and told her three times to leave the house, and that if

VOL. XXXV.—6

Peterson vs. Knoble.

she did not, he would throw her out; that, becoming frightened, she left the house, and remained away three or four hours; and that when sober, Peterson treated her well. The plaintiff was asked the age of her son; an objection by defendant was overruled; and witness answered that he was twenty years of age. After plaintiff rested, defendant moved for a nonsuit, for the reasons that the plaintiff had not shown facts sufficient to constitute a cause of action; that the court had no jurisdiction of the case; and that no damage to person, property or means of support had been shown. The motion was overruled. The justice before whom the action was first tried, testified that the minutes of trial then shown him were the original minutes of testimony taken on the trial; that he supposed they were correct, but he did not take down the whole of the testimony. The minutes were then offered in evidence by defendant for the purpose of contradicting the plaintiff, and showing that she swore differently on the trial in justice's court; but were objected to, and ruled out. No other evidence was given by the defendant.

The charge given to the jury sufficiently appears from the opinion of the court. Verdict for the plaintiff, for fifty dollars; and from a judgment on the verdict, the defendant appealed. Bundy & Macauley, for appellant:

1. The complaint does not state any facts showing that the plaintiff suffered any damage. It simply states that the plaintiff has been injured, without stating how. This is not good pleading. 4 Wis., 135; 30 id., 634; Mulford v. Clewell, 21 Ohio St., 191; Schneider v. Hosier, id., 98. 2. The court erred in admitting testimony as to the age of plaintiff's son. This testimony probably enhanced the damages, and was improper for that purpose, as it did not show any reason for exemplary damages. 1 Hilliard on Torts, 205; Horton v. Monk, 1 P. A. Browne, 65. 3. It was error to reject the minutes of the justice. Garfield v. Hatmaker, 15 N. Y., 475. 4. The instructions of the court to the jury were erroneous, and the damages are exces

sive.

Peterson vs. Knoble.

F. J. McLean, for respondent:

1. The justice had jurisdiction of the case under ch. 127, Laws of 1872, and under sec. 5, ch. 120, R. S. 2. The complaint is sufficient, as it follows the very language of the statute. 3. The proof that the plaintiff was put in fear by threats of violence, and was driven from her home, is sufficient evidence of injury to the person.

DIXON, C. J. This is an action under the "Graham Law" (ch. 127, Laws of 1872), by the wife against the defendant, a saloon keeper, to recover damages for injuries sustained by her in person, property and means of support in consequence of the intoxication of her husband caused by intoxicating liquors sold to him by the defendant. The complaint is in very general terms, following the language of the statute almost literally, and charging that in consequence of such intoxication the plaintiff "has been injured in person, property and means of support." On the trial, the defendant insisted that no cause of action was set forth in the complaint, and objected to any evidence being received under it. A similar objection was taken in support of the motion for a nonsuit. Allegations so vague and indefinite ought not to be tolerated, and would not be, if only objection had been taken in the proper form. But the defendant mistook his remedy. The complaint, general as it is, does state a cause of action under the statute. It states it most indefinitely, and without any of that particularity which the rules of pleading demand in order to inform the defendant of what he is to meet. But the remedy of the defendant was by motion to make the pleading more definite and certain, which, if it had been made, must have prevailed, and the plaintiff would have been required to specify the facts and circumstances by or under which she was injured.

The only proof made by the plaintiff on the trial was of injury suffered by her in person. Her husband, while in a state of intoxication, used threatening and abusive language to her,