#### Price, Appellant, vs. Grzyll, Respondent.

*November 6*

December *13, 1907.*

*,Pleadings: Amendment after trial: Discretion: Assault and battery: Defenses: Justification: Self-defense: General denial: Trial: Acceptance of benefits of an order or judgment: Waiver: Appeal and error: Assignments of error: Evidence: Hearsay:*Res ges-te : *Prejudicial error: Instruction to jury.*

1. The power of trial courts to allow amendments in furtherance of justice is very broad.

*'2.*Where, in an action for assault and battery, the trial court allowed the issue of justification of the assault to be brought into the case by amendment after the completion of the trial and rendition of the verdict, while such proceeding is unusual, it is *held*to have been within the discretion of the trial court.

'3. While an assault may be justified by the necessities of self-defense, not every act of self-defense is an assault, even though it result in physical contact with another’s person to his hurt.

4. Where one is attacked he may interpose a shield, and contact therewith by the assailant, however injurious to him, is not an assault by the other.

■5. In an action of assault and battery a defense of justification cannot properly be considered under a general denial.

'6. One who accepts the beneficial condition of an order or judgment waives all objection thereto.

7. By accepting the costs awarded by an order as condition of an amendment to a pleading a party waives all objection to that order.

:8. Assignments of error in the striking out of answers of witnesses cannot be sustained where the answers merely narrated statements of others and were mere hearsay.

*6249. In an action for assault and "battery, ruling out statements of plaintiff to her niece as to her pain and injury after she had been precipitated from a porch is *held*to have had no prejudicial effect upon a verdict for defendant, since such statements, were not *res gestee,*and could be material only on the question of damages, which the jury never reached.

10. Refusal to give requested instructions is *held*not prejudicial error where they are negatived by a change of issues, accomplished by an amendment of the pleadings to correspond to the-evidence on the trial.

Appeal fro-m a judgment of the circuit court for Waupaca county: Ohas. M. Webb, Circuit Judge.

*Affirmed.*

Action for assault and battery committed by defendant-on plaintiff, in that he wilfully and maliciously pushed the-plaintiff over a porch railing, causing her to fall to the ground, whereby she suffered serious injuries. The answer-interposed contained merely a general denial. The contention of the plaintiff was that, having visited the defendant’s-, house on a matter of business and having been threateningly ordered to leave, he, as she reached the door, suddenly seized" her by the throat and threw her over the railing. The defendant’s theory of the transaction was that, as he held open, the door of the house for her to pass out, she suddenly struck him in the face and then seized him by the clothing about the throat, and that his only act was to use such force with his arm against hers as to break away that hold, and that,, as her hold was broken, she stepped backward and fell down the steps from the porch to the ground, and that his acts did not constitute an assault upon her. Verdict was found for the defendant, whereupon the plaintiff moved to set aside-that verdict and for a new trial, partly upon the ground that the jury had been allowed to roach their verdict upon justification of the assault. The defendant moved for leave to-amend his answer by setting up justification, in accordance with the evidence which had been introduced upon the trial,, over objection by the plaintiff upon the ground of inadmissi*625bility under mere general denial. Tbe plaintiff admitted that there was no additional evidence which she could have introduced had there been a plea of justification and self-defense, and it was further made to appear that this trial constituted the third in which all the facts had been fully investigated, one of the earlier ones being in a criminal prosecution. The court entered an order allowing the amendment upon the condition that the defendant pay $10 costs to plaintiff’s attorney. Written exception was filed to this order, but plaintiff’s attorney received and retained the $10 paid as a condition of such amendment. Whereupon judgment was rendered for the defendant, from which the plaintiff appeals.

*B. N. Van Boren,*for the appellant.

Eor the respondent there was a brief by *John G. Hart*and *Parle & Carpenter,*and oral argument by *B. B. Parle.*

Dodge, J.

The most important question presented is whether the trial court abused judicial discretion by allowing the issue of justification of the assault to be brought into the case after completion of the trial and rendition of verdict.Doubtless such a step is very unusual where the opposing party has at all times protested against the trial of such issue; and if, in such case, it is believable that such party might have modified his conduct by offering other evidence or the like, such an amendment would probably be condemned even on appeal. *Manitowoc S. B. Works v. Manitowoc G.*Co. 120 Wis. 1, 97 N. W. 515; *Guerin v. St. Paul F. & M. Ins. Co.*44 Minn. 20, 46 N. W. 138. Nevertheless the power of the trial court to allow amendments “in furtherance of justice” is very broad. *Ill. S. Co. v. Budzisz,*106 Wis. 499, 503, 82 N. W. 534; *Gates v. Paul,*117 Wis. 170, 94 N. W. 55; *Kleimenhagen v. Dixon,*122 Wis. 526, 100 N. W. 826; There was much in this ease to appeal to discretion. The complaint, though upon liberal interpretation *626charging generally an assan.lt, was so worded as to give some justification to the asserted understanding by counsel that it was intended to charge only one specific act of assault, such as would be fully controverted by proof of events according to defendant’s evidence. Such understanding had been in some degree confirmed by conduct of plaintiff’s attorney, who in a previous trial, resulting in disagreement, had raised no objection to that evidence. As result of such understanding defendant’s contention throughout was that he had no occasion to prove justification of his acts. While an assault may be justified by the necessities of self-defense, not every act of self-defense is an assault, even though it result in physical contact with another’s person to his hurt. When one is attacked he may interpose a shield, and contact therewith by the assailant, however injurious to him, is not an assault by the other. Defendant claims this to have been the extent of his acts, but the court went further in his instructions, which authorized a verdict for the defendant, even though his acts constituted an assault, if he were justified by necessity of defense of his person or domicile. Such a defense could not properly be considered under the general denial. *Yeska v.*Swendrzynski, *ante,*p. 475, 113 N. W. 959. Thus the question had been submitted to and passed on by the jury as it would have to be upon a new trial with the answer amended. The plaintiff admitted that she had brought forward all the evidence which could have been presented in any event, and the unsavory controversy had already been exhaustively ventilated three times. We confess there was much to attract a trial court to the conclusion that this verdict ought to be made final upon the real merits of the case, which had been'fully submitted to the jury. However, we shall not deem it necessary to decide whether judicial discretion was abused. The case is so peculiar as to be at best of doubtful analogy to any other, and a decision'might well become a misleading rather than a helpful precedent. We *627are absolved from the necessity of snch decision by the unavoidable conclusion that appellant has waived all objection to the act of the court in thus changing the issues after verdict by accepting the benefits of the condition on which the change was made. The authorities are conclusive that one who accepts a beneficial condition of an order or judgment waives all objection thereto. *Cogswell v. Colley,*22 Wis. 399; *Webster-Glover L. & Mfg. Co. v. St. Croix Co.*71 Wis. 317, 36 N. W. 864; *Ruege v. Cales,*71 Wis. 634, 38 N. W. 181; *Smith v. Coleman,*77 Wis. 343, 348, 46 N. W. 664; *Cook v. McComb,*98 Wis. 526, 530, 74 N. W. 353; *Drake v. Scheunemann,*103 Wis. 458, 79 N. W. 749.

The conclusion thus reached disposes of many of the specific assignments of error, such, for example, as are predicated upon instructions submitting to the jury the issue of justification, or upon admission of evidence in support thereof, though we find none of the latter which was not necessarily admissible under the general denial as merely descriptive of the transaction narrated by plaintiff as basis for her cause of action or her demand for punitory damages. *Yeska v. Swendrzynski, supra.*

The third and fourth assignments of error cannot be sustained. They were upon the striking out of answers of two witnesses, both of which merely narrated statements of others and were hearsay. The statement of the plaintiff to her niece as to her pain and injury after she had been precipitated from the porch was not *res gestee*to the assault, and, in any event, could be material only to the question of damages, which the jury never reached. The ruling could not prejudicially have affected the verdict.

All of plaintiff’s requests for instruction, refusal of which is assigned as error, were by their words predicated upon a declaration that verdict must go for plaintiff because defendant had conceded an assault. Such premise is of course negatived by the change of issues accomplished by the amend*628ment, and for that reason, if for no other, the refusals cannot be considered prejudicial error.

Some other errors are assigned, but they seem to ns so obviously unfounded or so immaterial to the result as not to justify discussion here. We find nothing which necessitates reversal.

*By the Court.*— Judgment affirmed.