
    Winter, Respondent, vs. Beebe, Appellant.
    
      November 15
    
    December 12, 1905.
    
    
      Assault and battery: Taking one’s own property by force: Evidence.
    
    1. The owner of property which is in the peaceable possession of another has no right, as a general rule, to take the property by force.
    2. In an action for assault and battery against the owner of property who took it by force from the peaceable possession of plaintiff, evidence that plaintiff was at the time under the influence of liquor and by reason thereof was “bordering on imbecility,” offered by defendant as explanatory of plaintiff’s conduct in keeping the property, was inadmissible for that purpose-
    
      Appeal from a judgment of tbe circuit court for St. Croix •county: E. W. HelMS, Circuit Judge.
    
      Affirmed.
    
    Action to recover damages for assault and battery. Tbe undisputed evidence shows that plaintiff was employed by defendant to put in electric droplights in a store in tbe city of New Richmond; that defendant conducted a drug store adjacent to tbe store in question, and about five days prior to March 15, 1904, leased this store; that, although said stores were in the same building, there were no doors or other connection between them allowing passage from one to the other; that on said 15th day of March, 1904, the store in question was practically vacant, save that a very few items of furniture stock had been placed therein, and some painters had been at work in the store until about the middle of the forenoon, and after they left plaintiff continued to work there alone; that at 5 :30 p. m. ho had in his possession the key to one of the back doors, which was given to him by one of the painters or had been taken by him from the door; that defendant went into the store where plaintiff was at work about 5 :30 p. m. and asked him where the key to the door was, and plaintiff implied that he had it in his pocket, and defendant made no objection; that shortly after 6 p. m. plaintiff, not having completed his work, left his tools in the store, locked the door and put the key in his pocket, and entered defendant’s drug store and asked him who would be at work in the building the next day; that defendant then asked plaintiff where he left the key, and plaintiff replied that he had it in his pocket, and upon request refused to give it up until he had finished his work, and gave as a reason that his tools were in the store; that plaintiff then went across the street to the postoffice, and, when he came out, defendant accosted him and requested the key, plaintiff again refusing to surrender it, whereupon defendant grabbed him, led him back to the north side of the ■drug store, and threw him down three times, each time demanding the key, which plaintiff refused to give up; his leg being broken the last time he was thrown. At the close of the testimony defendant moved the court to direct a verdict of no-canse of action, also to submit the issues to the jury on a special verdict. Both motions were denied. The court then, submitted to the jury the question of amount of damages,, which were assessed at $850, and judgment was entered for plaintiff upon the verdict, from which this appeal is taken.
    Eor the appellant the cause was submitted on the brief of W. F. McNally.
    
    To the point that the owner of property, entitled to the immediate possession thereof, may use reasonable force to recover the same from one who unlawfully detains it, without liability to the wrongdoer for injuries caused by such force,' he cited Fames v. Prentice, 8 Cush. 33T Curtis v. Calvin, 1 Allen, 215 ; Low v. Flwell, 121 Mass. 309,. and cases cited; Comm. v. Donahue, 148 Mass. 529; Harvey v. Brydges, 14 M. & W. 437; Davis v. Burrell, 10 C. B. 821, 825; Blades v. Higgs, 10 O. B. N. s. 713; Lyon v. FaÁrbank,.. 79 Wis. 455, 463; Hamilton v. Arnold, 116 Mich. 684, 75-N. W. 133; Hodgeden v. Hubbard, 18 Vt. 504; Heminway v. Heminway, 58 Conn. 443; Barr-v. Post, 56 Neb. 698, 77' N. W. 123; Miller v. Sadowsky (Mich.) 101 N. W. 621;-Wright v. Southern Fxp. Co. 80 Eed. 85; Johnson v. Perry,. 56 Vt. 703; State v. Elliot, 11 N. H. 540; Hopkins v. Dickson, 59 N. H. 235; State v. Dooley, 121 Mo. 591, 26 S. W.. 558; Baldwin v. Hayden, 6 Conn. 453; Winter v. Atkinson,. 92 Ill. App. 162; Manning v. Bmwn, 47 Md. 506; Comm, v.. Lynn, 123 Mass. 218.
    Eor the respondent there was a brief by Baker & Haven,. and oral argument by Spencer Haven.
    
   KeewiN, J.

Two questions arise under the assignments of error: Eirst, Was the court right in holding that upon the evidence the plaintiff was entitled to judgment, and in submitting to the jury only the question of amount of damages ?' and second, Did the court err in excluding evidence ?

Tbe facts in this case bring it clearly witbin tbe rule of Monson v. Lewis, 123 Wis. 583, 101 N. W. 1094. Tbe plaintiff bad peaceable possession of tbe key, and tbe defendant was not justified in making an assault upon plaintiff for tbe purpose of getting possession of it. He therefore was liable for tbe damages resulting from sucb unlawful acts. Monson v. Lewis, supra.

Error is assigned because tbe court excluded evidence to tbe effect tbat plaintiff was at tbe time of injury under tbe influence of liquor, on tbe ground tbat sucb evidence would bave shown tbat plaintiff was on this account “bordering on imbecility, half crazy.” On objection to tbe evidence defendant’s counsel expressly stated tbat be did not offer it on tbe question of damages, but for tbe purpose of showing tbe strange conduct of plaintiff at tbe time of tbe injury as a reason why be kept tbe key. It was clearly inadmissible for sucb purpose, and no error was committed in excluding it. We find no •error in tbe record.

By the Gourt. — Judgment affirmed.  