Basile v. Fath

• Decision Date: 09 December 1924
• Citation: 201 N.W. 247,185 Wis. 646
• Parties: BASILE v. FATH ET AL.
• Court: Wisconsin Supreme Court

185 Wis. 646

201 N.W. 247

BASILE

v.FATH ET AL.^a1

Supreme Court of Wisconsin.

Dec. 9, 1924.

Appeal from Circuit Court, Milwaukee County; Otto H. Breidenbach, Judge.

Action by Anna Basile, by guardian ad litem, against John Fath and others. From orders denying defendant's motion to vacate order setting aside verdict and granting new trial, and again directing new trial, defendants appeal. Order reversed, and cause remanded, with directions.

The infant plaintiff sought to recover damages from having been injured by defendant's automobile at the intersection of Jackson street, running north and south, and Pleasant street, squarely crossing it, in the city of Milwaukee. Plaintiff's contention was that defendant's automobile coming from the south on Jackson turned west onto Pleasant street by cutting across near the southwest corner rather than going around the center of the intersection. There is no dispute but that after the collision the plaintiff was picked up about three feet from the northwest curb. By special verdict the jury negatived plaintiff's contention as to the place of the collision by finding that it did not occur at the southwest corner; found that the driver was not negligent as to speed or in the management and operation of the automobile; that there was no contributory negligence by plaintiff; and assessed damages at $1,000. Defendants moved for judgment on the verdict. The plaintiff moved that certain answers of the jury in the special verdict be changed from “no” to “yes,” and then for judgment in plaintiff's favor; for judgment notwithstanding the verdict; that in the event of both of such requests being denied, for a new trial because the verdict was perverse and the result of prejudice and bias; and, lastly, for a new trial for the reason that defendants' counsel during the trial and in the argument to the jury improperly and wrongfully injected into the cause matters outside of the record and unreasonably and unfairly assaulted the character and reputation of plaintiff's counsel, and otherwise committed improper acts and conduct before the court and in the argument to the jury. The trial court held that defendants' counsel had passed far beyond the bounds of proper argument by applying abusive and opprobrious terms to plaintiff's counsel. He therefore ordered that the verdict be set aside and a new trial granted. Defendants then moved the court to set aside such order upon the ground that there was no power in the trial court to grant such relief because of there having been no objections made, rulings had, and exceptions taken at the time of such argument. The trial court then denied such motion to vacate the preceding order and again directed a new trial. From such orders defendants appeal.Dale C. Shockley, of Milwaukee, for appellants.

Padway, Thompson & Skolnik, of Milwaukee (Joseph A. Padway, of Milwaukee, of counsel), for respondent.

ESCHWEILER, J. (after stating the facts as above).

Upon the special verdict as answered by the jury a judgment in favor of defendants dismissing the action upon the merits would have necessarily followed. The trial court, however, because he believed that the use of abusive language towards plaintiff's counsel by defendants' counsel in the argument to the jury might have had an effect upon the jury, and that therefore the plaintiff did not have the fair and impartial trial to which she was entitled, ruled that it was his duty, in the furtherance of justice, to grant a new trial.

Plaintiff's counsel arranged with the court reporter to have the argument of defendants' counsel to the jury taken down. In the preparation for this appeal the plaintiff requested and the trial court over defendants' objection made a part of the bill of exceptions certain portions of the argument of defendants' counsel to the jury so taken down, and in that manner the language so used is here presented.

No objections were interposed by plaintiff's counsel to the remarks during the argument; no request for a ruling by the court as to the right of defendants' counsel to so address the jury, or to the propriety of such remarks; and no request made that the court should charge the jury as to such alleged impropriety or abuse of counsel's right of argument. The trial court did not of its own motion at the time of making such remarks, or at any time before rendition of the verdict, admonish or censure counsel therefor or intimate to the jury that such remarks were improper and should have no weight in their deliberations. The bill of exceptions discloses that a number of objections were made and rulings requested by respective counsel on both sides to other remarks of opposing counsel during the arguments, and rulings then made.

Section 2878, Stats., provides that the trial judge may, in his discretion, entertain a motion to be made on his minutes, to set aside the verdict and grant a new trial upon exceptions or because the verdict is contrary to evidence, or for excessive or inadequate damages. It further provides for a time within which such motion, if heard upon the minutes, must be made and heard.

The trial court's disposition of this matter recognized that the relief here granted on account of the improper remarks of counsel did not come within any of the express provisions of said section. The granting of the new trial is sought to be justified upon the ground that the inherent power rests in the trial judge of a nisi prius court in this state independent of...