Corti v. Cooney

• Decision Date: 07 December 1926
• Citation: 191 Wis. 464,211 N.W. 274
• Parties: CORTI v. COONEY ET AL. TRUSSONI v. COONEY ET AL.
• Court: Wisconsin Supreme Court

191 Wis. 464

211 N.W. 274

CORTI

v.COONEY ET AL.

TRUSSONI

v.COONEY ET AL.

Supreme Court of Wisconsin.

Dec. 7, 1926.

Appeal from Circuit Court, La Crosse County; R. S. Cowie, Judge.

Actions by Joseph Corti and J. B. Trussoni against Helen Cooney and others. From judgments for plaintiffs, defendants appeal. Judgment in each case reversed and remanded.--[By Editorial Staff.]

Personal injury. Misconduct of attorney. The plaintiffs Corti and Trussoni were traveling north on the main trunk highway known as the Mormon Coulee road, in a motorcycle with side car. The defendants were driving southerly on the same highway in an automobile. The two vehicles collided, and the plaintiffs sustained the injuries for which satisfaction is sought in these actions. Separate actions were brought, but were consolidated for purposes of the trial, and are considered together on this appeal. The jury found that the defendant Kins at the time of the collision was operating an automobile belonging to the defendant Cooney, as her servant and under her personal direction, and that he failed to exercise ordinary care in the operation of the automobile he was driving, which was the proximate cause of the collision; that neither of the plaintiffs were guilty of contributory negligence; and assessed the amount of damages at the sum of $1,833 in each case. There were the usual motions; motions of the defendant were denied, and plaintiffs each had judgment upon the verdict. From the judgments, the defendants appeal.George H. Gordon and Law & Gordon, all of La Crosse, for appellants.

F. E. Withrow, of La Crosse, for respondents.

ROSENBERRY, J.

It is contended here that as a matter of law the defendants were not guilty of negligence and that the plaintiffs were guilty of contributory negligence. We have examined the evidence, and are of the opinion that a jury question is presented by the evidence upon both phases of the case. Inasmuch as there must be a new trial, we purposely refrain from further comment upon the evidence. Were it not for the matters now to be adverted to the judgments should be affirmed.

The principal error assigned in the case arises out of the misconduct of the plaintiffs' attorney upon the trial. Prior to the beginning of the trial, the defendant Cooney had been adversely examined under the provisions of section 4096, now section 326.12 (St. 1925). Upon the opening of the trial the plaintiff read the deposition of the defendant Helen Cooney so taken. The examination was rigorous and exhaustive, especially upon collateral matters. Twelve other witnesses were then called, and the defendant Helen Cooney was called as a witness on the trial and as an adverse party under the statute, and examined as follows:

“Q. Miss Cooney, what is your name? A. Helen Cooney.

Q. Were you married to Mike Correzzo in Chicago?

Mr. George H. Gordon: Object to that.

Court: Sustained.

Q. Were you convicted on the 12th day of February, 1924, of adultery in the Auditorium Hotel in Chicago with one Mr. Weil?

Mr. George H. Gordon: Object to that.

Court: Sustained.

Mr. Withrow: I at this time wish to offer a certified copy of this conviction.

Mr. George H. Gordon: Objected to.

Court: Sustained.

Mr. George H. Gordon: The jury should be instructed to disregard these insinuations.

Court: The jury is instructed to disregard it; the question is entirely improper--has no bearing on the issues in this case.”

The plaintiff then produced as a witness one John Fitzpatrick, who testified that he was a police officer of the city of La Crosse; that he saw Helen Cooney at the Winter Gardens during the winter of 1924 (the accident happened March 26, 1925), and his examination proceeded as follows:

“Q. Did you notice as to whether she was intoxicated--drunk--or not? A. Yes, sir.

(Objected to. Sustained.)

Court: Strike out the answer. The jury will disregard it as having no bearing on the issue in this case.

Mr. Withrow: As a matter of impeachment?

Court: Oh, no.

Mr. Withrow: She testified she never drank.

Court: You can't call a witness for the purpose of impeaching them. Objection sustained.”

Thereafter and at the close of plaintiffs' case the following proceedings were had:

“Mr. George H. Gordon: We desire that the jury be excused. There is a matter I want to call to the court's attention. (Jury retires.)

Mr. George H. Gordon: On the attempted cross-examination of Helen Cooney, the counsel asserted he had a certificate of conviction of adultery. We request that that gentleman produce that certificate and have the court look at it, and, if he hasn't such certificate, that the court instruct the jury the introduction was improper.

Court: This is not a certificate of conviction that she had been convicted of adultery. There is no conviction for adultery. This is not a certificate of conviction for adultery. That is a certified copy of a divorce.

Mr. S. G. Gordon: With no appearance on behalf of the defendant.

Mr. Withrow: ‘That, subsequent to their marriage, the defendant had been guilty on the 12th day of February, 1924, in the Auditorium Hotel, Chicago, with one Mr. Weil.’

Court: That is all right.

Mr. George H. Gordon: That is a recital.

Court: That is a recital in a divorce decree, She has never, according to that, been convicted so that it would be admissible in evidence.

Mr. George H. Gordon: There wasn't any foundation.

Mr. Withrow: There was basis and I take exception.

Mr. S. G. Gordon: We ask that plaintiff's counsel be admonished not to make further reference to that matter again before this jury.

Mr. Withrow: I don't think it is fair for the attorney on the other side to try to foreclose me from making reference.

Court: The harm is done by making reference that you can't substantiate the evidence. You mustn't do it. If you do, you do it at your own peril. I shall have to instruct the jury very strongly on it.”

In submitting the case to the jury the court gave the following instructions:

“In this case, during the testimony of the defendant Helen Cooney, some questions were asked of this defendant as to whether or not she had been convicted of the crime of adultery in the city of Chicago, and thereupon an instrument was offered in evidence which counsel for the plaintiff asserted was a certificate of conviction for adultery. The court has examined this instrument, and advises you and instructs you that this instrument does not, or is not, a certificate of conviction of adultery, and the statement in that regard was not true, and you are further instructed that you are to entirely disabuse your mind of any consideration of that question. In civil action, it is often permitted, to test out the credibility of a witness, to ask them with regard to the commission of prior offenses or convictions of prior offenses. That doesn't go to the question of the merits of the case, however, at all, but is permitted in some cases merely that the jury may use that in testing the credibility of that particular witness. The issues here have nothing to do with the conviction of a prior offense. You are so instructed.”

In response to the charge of misconduct on his part, plaintiffs' attorney makes the following excuse and justification:

“In the course of the trial the attorney for the plaintiffs introduced a certified copy of a divorce decree granted the husband of the defendant Helen Cooney on the grounds of adultery, and which the attorney for the plaintiffs mistakenly informed the court was a copy of the conviction of defendant Helen Cooney of the crime of adultery. The evidence was rejected by the court, who instructed the jury that the remarks of the attorney for the plaintiffs were not true and should be entirely disregarded. The jury was not prejudiced thereby against the defendants. If any...