Boller v. Cofrances

CourtUnited States State Supreme Court of Wisconsin
Citation42 Wis.2d 170,166 N.W.2d 129
Docket NumberNo. 33,33
PartiesVirginia M. BOLLER, as Admx. of the Estate of Henry W. Boller, Decd., Appellant, v. Ernest Lewis COFRANCES et al., Respondents.
Decision Date01 April 1969

Arneson, Berg & Doyle, Ltd., Patrick R. Doyle, LaCrosse, for appellant.

Crosby & Esch, Fredric W. Crosby, LaCrosse, for respondents.

HEFFERNAN, Justice.

On this appeal the plaintiff claims that the trial court should have instructed the jury that:

'The disfavored driver in determining whether the favored driver is approaching the intersection should not be bound to anticipate that the favored driver would be approaching at an unreasonably high rate of speed in excess of the speed limit.'

Whether the trial judge should have given the instruction now urged will not be decided on this appeal, for it was not suggested to the trial judge or otherwise requested at trial. The only instruction requested by the plaintiff which would have affected the jury's appraisal of plaintiff's negligence as to right of way in light of the defendant's speed appears in the following colloquy in chambers:

'MR. ARNESON: Let me make one other objection, Judge, one other request I should say, not objection. I'm going to specifically request and even though I don't have a written request here I hope Fred will waive that for me because I will go and prepare it now, if necessary, but I want an instruction in here to the effect that a person proceeding on an arterial highway in violation of the speed regulations forfeits his right-of-way.

'MR. CROSBY: That of course is not the law.

'MR. ARNESON: No, it's not the law at present but I'm going to specifically ask for that instruction in this case. But I know you're not going to give it.

'THE COURT: I will refuse it.'

As far as we can tell from the record--the plaintiff failed to submit a transcript--no other request was submitted by plaintiff's counsel and rejected by the trial judge. Certainly, the instruction now urged upon this court was never requested.

The judge, of course, correctly refused the instruction that was requested. Speed does not result in a forfeiture of right-of-way on a traffic artery, although it may well be an element of negligence. City of Milwaukee v. Eisenberg (1967), 36 Wis.2d 378, 383, 153 N.W.2d 519; Magin v. Bemis (1962), 17 Wis. 192, 199, 116 N.W.2d 129. As the cited cases point out, such has been the law since the legislative session of 1955. The instruction requested by plaintiff's attorney was palpably erroneous.

On this appeal plaintiff now concedes his error but claims that an instruction not requested should have been given. Since the request was not made, and there is no evidence in the record before us that the instruction was urged on the trial court even on motions after verdict, the plaintiff cannot now raise the trial court's failure to give it. Our review of the record would indicate that the present appeal is based not upon the judge's error at trial but rather upon the hindsight and post-trial reconsideration of the plaintiff's attorney. The words of Mr. Chief Justice Currie in Withers v. Tucker (1965), 28 Wis.2d 82, 87, 135 N.W.2d 776, 779, are appropriate here:

'Appellant is precluded from raising this issue on appeal for two reasons. First, he failed to request the giving of any additional instructions, and second, he did not move for a new trial on the ground of error instructions.

'In Grinley v. Town of Eau Galle (1956), 274 Wis. 177, 179, 79 N.W.2d 797, 798, this court has clarified the position of appellant who failed to request instruction:

"The record does not disclose that such instructions were requested by the plaintiffs. Therefore error cannot now be predicated on their omission. Where instructions are incomplete, and do not cover a point that ought to be covered, this court will not reverse unless a timely request for appropriate instructions has been made to the trial court. Madison Trust Co. v. Helleckson, 216 Wis. 443, 456, 257 N.W. 691, 96 A.L.R. 992; Jorgenson v. Hillestad, 250 Wis. 592, 599, 27 N.W.2d 709; Throm v. Koepke Sand & Gravel Co., 260 Wis. 479, 483, 51 N.W.2d 49.'

'If an alleged error is one, such as an instruction claimed to be erroneous because incomplete, which the trial court could correct by granting a new trial, such error is not reviewable as a matter of right unless appellant has first moved for a new trial bottomed on such error in the trial court. Wells v. Dairyland Mut. Ins. Co. (1957), 274 Wis. 505, 518, 80 N.W.2d 380.'

Is a new trial warranted because of defendant's counsel's conduct in asking an allegedly improper question that indelibly prejudiced the jury despite the admonitions of the trial judge?

The plaintiff argues that a new trial should be granted because Virginia Boller was asked the following question on cross-examination by defense counsel:

'Q. Were you awere of the affair that your husband was having with Mrs. Case (the passenger in the car)?

'MR. ARNESON: I object to this, Your Honor, as improper cross examination. There's no foundation for any kind of questioning about that. It's beyond the scope of direct examination in every respect.

'THE COURT: Beyond the scope, Mr. Crosby. Objection sustained. (Emphasis supplied.)

'MR. ARNESON: And I ask that the jury be instructed to disregard it.

'THE COURT: Jury will be instructed to disregard it.

'MR. CROSBY: That's all.'

On motions after verdict, plaintiff's counsel asked for a new trial 'because of prejudicial misconduct on the part of counsel' that affected the apportionment of negligence.

To bolster this argument, plaintiff's attorney presented the trial court with an affidavit of one of the jurors who dissented in the apportionment of the negligence. He said in his affidavit:

'That during the prolonged and intense debate on the question of comparison of negligence in this case, the majority jurors constantly referred to and in his opinion were influenced by the question of Attorney Crosby put to the witness Mrs. Boller to the effect that: 'Was she aware that her husband was having a clandestine affair with Mrs. Case?'

'That in spite of the Judg's ruling that such question was improper and should be disregarded, the majority jurors seized upon such improper question by counsel as enstablishing such a relationship to prejudice of Mrs. Boller, the plaintiff, and that in his opinion such prejudice materially affected the determination of such jurors on the question of apportionment of negligence.

'That in his opinion the majority jurors totally disregarded the Trial Judge's instruction to disregard such question and its implications to the prejudice of the plaintiff.'

We have made it clear that we would not countenance the consideration of affidavits or testimony by a juror that tends to impeach a jury verdict. Kink v. Combs (1965), 28 Wis.2d 65, 135 N.W.2d 789; Ford Motor Credit Co. v. Amodt (1966), 29 Wis.2d 441, 139 N.W.2d 6, 18 A.L.R.3d 1123. These cases discuss the reason for the rule and point out that the use of such evidence would seriously undermine the efficacy of our system of jury verdicts. In Ford we pointed out, at pages 450, 451, 139 N.W.2d at page 11, that although 'jurors may sometimes be required to confirm or deny someone else's attack upon their verdict, * * * they themselves may never embark on a course which will impeach their verdict.'

Our subsequent opinion in Miller v. Illinois Central R.R. (1967), 36 Wis.2d 184, 152 N.W.2d 898, reemphasized and clarified the broad prohibition against the use of jury-initiated evidence for the purpose of impeachment of verdicts. In view of our repeated admonitions against securing or attempting to use such evidence, which tends to undermine our jury system, we consider the action of plaintiff's attorney to be of dubious propriety.

However, we need not consider the affidavit of Juror Jones to conclude that the question did not result in a prejudiced verdict. Virginia Boller was asked whether she was aware of her husband's affair with Mrs. Case. If the jury had by this question been influenced to believe that the relationship between Henry and Virginia Boller was strained and somewhat less than one of complete mutual trust and affection, it would be reasonable to assume that such jury reaction would be reflected in the jury's answer to the question, 'What sum of money will reasonably compensate the plaintiff, Virginia Boller, for the damage she has sustained for loss of society and companionship?' The jury, however, awarded her the sum of $5,000--$2,000 in excess of the limit allowed by sec. 895.04, Stats. If prejudice were at work in connection with the disputed question, we are of the opinion that its effects would be apparent in the jury's award of damages for loss of society and companionship. It is not apparent.

We fail to see by what logic the plaintiff would have us relate the apportionment of negligence to the question of Henry Boller's alleged 'affair.' After all, she, Virginia Boller, not he, was the plaintiff, and it could just as reasonably be argued that the jury concluded that it should give special consideration to a wife who was wronged by her husband and reward her with a generous verdict. It is apparent that either conclusion is purely speculative and cannot be used as a basis for setting aside the jury's apportionment of negligence. We said in Barber v. City of Oshkosh (1967), 35 Wis.2d 751, 754, 151 N.W.2d 739, 741:

'* * * ordinarily apportionment of negligence is for the jury. The general rule is that a jury's findings as to negligence apportionment will be sustained if there is any credible evidence that, under any reasonable view, supports such findings.'

There is ample evidence of record to support the jury's findings.

We should also point out that, had plaintiff's counsel any reason to apprehend that the question posed was highly prejudicial and would infect the jury verdict despite the judge's admonitions that the jury...

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  • State v. Messelt, 91-2060-CR
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    • United States State Supreme Court of Wisconsin
    • 23 Junio 1994
    ...this court prevented a juror from testifying that she assented to a verdict only because of fatigue. And in Boller v. Cofrances, 42 Wis.2d 170, 177, 166 N.W.2d 129 (1969), we held inadmissible a juror's affidavit which indicated that the jury gave weight to a question asked at trial despite......
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    ...Neely would then be entitled to invoke his fifth amendment privilege. We disagree with Neely's argument. In Boller v. Cofrances, 42 Wis.2d 170, 183-84, 166 N.W.2d 129, 135 (1969), our supreme court specifically adopted the wide-open cross-examination rule now codified in sec. 906.11(2), Sta......
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    • 21 Julio 1980
    ..."of all facets of an alleged crime" are permitted under Wisconsin's "wide-open" cross-examination rule. Boller v. Cofrances, 42 Wis.2d 170, 184, 166 N.W.2d 129, 135 (1969). The cross-examination of the defendant concerning the Wright and Lessard incidents was proper under Wisconsin's Rules ......
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    ...thus developed are not inconsistent with his previous answers, to ask a witness to expand his testimony.'11 Boller v. Cofrances (1969), 42 Wis.2d 170, 181, 166 N.W.2d 129, 134, stating: '. . . The rule against questioning any witness 'beyond the scope of direct examination' has no intrinsic......
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