Halsted v. Kosnar

Decision Date08 January 1963
Citation118 N.W.2d 864,18 Wis.2d 348
PartiesOliver HALSTED, Appellant, v. Arthur KOSNAR et al., Respondents.
CourtWisconsin Supreme Court

Moran & Richardson, Delavan, for appellant.

Evrard, Evrard, Duffy, Holman & Faulds, Green Bay, for respondents.

GORDON, Justice.

Counsel's Argument as to Damages

Upon this appeal we are confronted with the problem of determining whether an attorney is to be restricted as to the amount of money he asks from the jury for his client's pain and suffering. The problem also involves not only how much the plaintiff asks but how little the defendant proposes.

In Affett v. Milwaukee & Suburban Transport Corp. (1960), 11 Wis.2d 604, 614, 106 N.W.2d 274, 280, the court said it was proper for counsel to argue for a lump sum which 'he believed the evidence would fairly and reasonably sustain.' Subsequently, in Walker v. Baker (1961), 13 Wis.2d 637, 651-652, 109 N.W.2d 499, 507, we held that plaintiff's counsel was not acting improperly when, in his final argument to the jury, he said: 'I am asking you to consider $25,000.' The court then quoted the following from the Affett case, supra, 11 Wis.2d at page 613, 106 N.W.2d at page 280:

'The present rule for measuring damage is as fixed as the nature of the subject matter will permit. True, counsel should be entitled to a reasonable latitude in argument and in commenting on the evidence, its nature and effect, and may make proper inferences which may reasonably arise from the evidence.'

In the instant case, the trial judge has further restricted the rule announced in the Affect case and the Walker case by providing that counsel may argue for only such lump sum of money as the trial judge deems to be supported by the evidence. In our opinion, it is consistent with the concept of 'reasonable latitude in argument' that counsel be permitted to urge upon the jurors such figure as he considers to be fairly supported by the evidence.

The test as to what is permissible by way of counsel's argument in presenting his lump sum figure for pain and suffering must be a subjective one. If the attorney argues to the jury that a certain figure is sustained by the evidence, neither his good faith nor his ethics should be subjected to post-trial challenge. We reject the learned trial judge's suggestion that the request for a figure larger or lower than the court would later sustain constitutes a violation of the attorney's oath. The measurement of pain and suffering is so patently thorny that the yardstick used by counsel should not be condemned merely because the court considers it too long or too short.

We recognize that there are plaintiffs' lawyers who demand 'boxcar' figures and defendants' lawyers who propose absurdly low awards. If we have faith in the jury system we must assume that jurors properly instructed will apply their common sense and reject the extremes to which partisan advocates may stretch. In our opinion, excessive demands, either too high or too low, will normally backfire. In those instances in which jurors reach a conclusion which is beyond the range of reasonableness, the law affords relief--both in the trial court and on appeal.

Although there should be broad latitude regarding the lump sum which counsel may urge upon the jurors, it does not follow that appeals to passion may be made in connection with damages. For example, in Larson v. Hanson (1932), 207 Wis. 485, 489, 242 N.W. 184, 186, the following statement was made by counsel: 'There is not a man of you that would trade his left hip for $30,000.' We held that this argument was improper and constituted one of the grounds for the granting of a new trial.

The Illinois court addressed itself to the problem of the propriety of arguing a lump sum figure to the jury in Graham v. Mattoon City Ry. Co. (1908), 234 Ill. 483, 491, 84 N.E. 1070, 1073, and stated:

'We do not think that there is any valid objection to counsel, in argument, telling the jury what, under the evidence, counsel considers a fair compensation for the injuries received.'

Recently the Illinois court again considered this problem in Caley v. Manicke (1962), 24 Ill.2d 390, 394, 182 N.E.2d 206, 209. The court noted that '* * * it has been the accepted practice and custom for counsel to suggest a total monetary award for pain and suffering.' The court concluded that such practice did not constitute improper argument. A similar result was recently reached by the New Hampshire court in Duguay v. Gelinas (1962), 104 N.H. 182, 182 A.2d 451, 454.

In Caylor v. Atchison, Topeka and Santa Fe Railway Co. (1962), Kan., 374 P.2d 53, 54, the Kansas court stated:


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9 cases
  • Baylor v. Tyrrell
    • United States
    • Nebraska Supreme Court
    • November 20, 1964
    ...to limit its application, and to specifically point out the propriety of suggesting a lump sum dollar amount. See, Halsted v. Kosnar (1962), 18 Wis.2d 348, 118 N.W.2d 864; Caylor v. Atchison, Topeka & Santa Fe Ry. Co., supra; Goldstein v. Fendelman (1960) (Mo.), 336 S.W.2d 661 (argument as ......
  • Quick v. 1960 American Legion, Dept. of Wis. Convention Corp.
    • United States
    • Wisconsin Supreme Court
    • October 3, 1967
    ...on this question ceases to be discretionary. Huebner v. Fischer, 232 Wis. 600, 603, 288 N.W. 254 (1939); Halsted v. Kosnar (1963), 18 Wis.2d 348, 354, 118 N.W.2d 864 (1963). If one ground relied upon by the trial court in granting a new trial in the interests of justice is sufficient, the o......
  • Fischer v. Fischer
    • United States
    • Wisconsin Supreme Court
    • June 7, 1966
    ...Baker (1961), 13 Wis.2d 637, 651, 109 N.W.2d 499, have followed the 'lump-sum' rule approved in Affett. Later, in Halsted v. Kosnar (1963), 18 Wis.2d 348, 352, 118 N.W.2d 864, we emphasized 'The test as to what is permissible by way of counsel's argument in presenting his lump sum figure fo......
  • Fields v. Creek
    • United States
    • Wisconsin Supreme Court
    • November 26, 1963
    ...407, 418, 291 N.W. 313; Markowitz v. Milwaukee Elec. Ry. & Light Co. (1939), 230 Wis. 312, 320, 284 N.W. 31. Cf. Halsted v. Kosnar (1963), 18 Wis.2d 348, 118 N.W.2d 864. In the instant case, the trial court did not see fit to criticize the argument of the plaintiff's counsel, and we are not......
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