Griffith v. Harris

• Decision Date: 29 June 1962
• Citation: 116 N.W.2d 133,17 Wis.2d 255
• Parties: Ambrose GRIFFITH, Appellant, v. William HARRIS et al., Respondents.
• Court: Wisconsin Supreme Court

Page 133

116 N.W.2d 133

17 Wis.2d 255

Ambrose GRIFFITH, Appellant, v. William HARRIS et al., Respondents.

Supreme Court of Wisconsin.

June 29, 1962.

Rehearing Denied Oct. 2, 1962.

Hugh M. Matchett and David F. Matchett, Jr., Chicago, Ill., Victor C. Cairo, Racine, Edward L. Hilton, Cedar Grove, Austin W. Kivett, Milwaukee, for appellant.

LaFrance, Thompson, Greenquist, Evans & Dye, Racine, for respondents.

GORDON, Justice.

In our opinion, public policy necessitates a rejection of the cause of action alleged in the complaint. The gravamen of the complaint is that the defendants broke their contract to appear and testify in the plaintiff's favor. The following portions of the complaint demonstrate that the basis of the plaintiff's cause of action is the defendants' failure to give favorable testimony:

'6. As a result of the defendants' failure to appear and testify in his behalf without a subpoena coupled with their statement that if subpoenaed they would not testify in a way that would benefit the plaintiff, the plaintiff did not subpoena them and they did not appear and testify on his behalf, and for want of favorable medical testimony the Court was required to and did dismiss the plaintiff's action at the close of plaintiff's case.

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'8. The misconduct of the defendants aforesaid materially interfered with the said judicial proceedings and said legal action then being prosecuted for the enforcement of plaintiff's legal rights, prevented the due enforcement of plaintiff's rights, constituted a wrongful interference with plaintiff's legal rights in said action, and resulted in plaintiff's said action against John L. Bennett being dismissed on motion by said doctor's attorney for non-suit at the close of the plaintiff's case, to the plaintiff's damage in the sum of One Hundred Fifty Thousand Dollars ($150,000.00).'

The plaintiff does not claim that his loss was occasioned merely by the doctors' failure to attend the trial. The complaint is not couched in terms of the burden and expense caused by the doctors' breach of an obligation to attend. On the contrary, it is their failure to give favorable medical evidence to establish an alleged malpractice which has prompted the plaintiff's claim that the defendants caused the plaintiff to lose his lawsuit.

A litigant and a prospective witness may lawfully contract between themselves that the latter will appear at a trial; the breach of such contract would give rise to the damages which reasonably flow from a witness's failure to appear. This might include the expense involved in seeking a substitute witness or perhaps the costs incurred in procuring a postponement of the trial. However, a contract creating an obligation not only to appear but also to testify in a certain manner on behalf of a party to a lawsuit, is against public policy. Miller v. Anderson (1924), 183 Wis. 163, 196 N.W. 869, 34 A.L.R. 1529. See also, Anno. 16 A.L.R. 1457 (1922). In the Miller Case, at p. 168, 196 N.W. at p. 871, we stated:

'Contracts to pay for collecting and procuring testimony to be used in evidence, coupled with a condition that the contractee's right to compensation depends upon the character of the testimony procured, or upon the result of the suit in which it is to be used, have been uniformly condemned by the courts as contrary to public policy, for the reason that such agreements hold out an inducement to commit fraud or procure persons to commit perjury. Thus, a contract to pay a physician a percentage of the recovery for acting as an expert in a personal injury action is against public policy.'

Contracts which impose obligations that are contrary to public policy are unenforceable. Schaal v. Great Lakes Mut. Fire & Marine Ins. Co. (1959), 6 Wis.2d 350, 94 N.W.2d 646; Pedrick v. First Nat. Bank of Ripon (1954), 267...