Hansen v. Boots

• Decision Date: 03 September 1918
• Docket Number: 4225. [*]
• Citation: 168 N.W. 798,41 S.D. 96
• Parties: HANSEN v. BOOTS.
• Court: South Dakota Supreme Court

168 N.W. 798

41 S.D. 96

HANSEN v. BOOTS.

No. 4225. ^[*]

Supreme Court of South Dakota

September 3, 1918

Appeal from Circuit Court, Beadle County; Alva E. Taylor, Judge.

Action by John C. Hansen against John H. Boots. Judgment on verdict for plaintiff, and defendant appeals. Reversed.

Gardner & Churchill and O. S. Hagen, all of Huron, for appellant.

B. B McClaskey and A. W. Wilmarth, both of Huron, for respondent.

POLLEY J.

Plaintiff claiming to have been injured by a pistol shot fired by defendant, brought this action against defendant for the recovery of damages alleged to have resulted from such injury. Verdict and judgment were for plaintiff, and defendant appeals.

Appellant assigns a number of errors of law committed by the trial court; but, for a reversal of the judgment, he relies mainly upon alleged misconduct of respondent's counsel during the trial. The encounter that resulted in the shooting occurred on a farm owned by appellant. Respondent had had a lease of said farm and was still living thereon. Appellant was anxious to have respondent vacate said farm in order to make room for another tenant. The testimony of appellant and respondent relative to just what occurred at the time of the shooting is very conflicting.

While appellant was on the witness stand in his own behalf respondent's counsel, presumably for the purpose of showing that it was appellant's habit to mistreat his tenants, asked the following series of questions, that appellant now claims constitute such misconduct as to warrant a reversal of the judgment (the subject of the inquiry was a man by the name of Kirk):

"Q. He had his leg broke while he was on the place, didn't he? (Objected to as immaterial and not proper cross-examination. Objection sustained by the court.) Q. And, after he had his leg broke and couldn't work any longer, you took steps at once to get him off, didn't you? (Objected to as immaterial and not proper cross-examination, and counsel for defendant requested the court to instruct counsel for plaintiff to discontinue this line of examination. Sustained.) Q. While he was sick in bed, you went down there and assaulted him while he was sick in bed and put him out of the house? (This was objected to as not proper cross-examination and immaterial; that it called for the opinion and conclusion of the witness; that there was no evidence in the record of any such transaction; and that none of such matters had been communicated to the plaintiff or known by him at the time of the alleged assault. Overruled.) A. No, sir. Q. And while he was upon the bed and you were in the attitude of putting him out of the house, didn't he draw a shotgun from behind the bed and tell you to get out, or in substance that? (Same objection. Sustained.) Q. You did force him out of the place at that time, while his leg was broken, didn't you? (Same objection; same ruling.) Q. Then you had trouble with other tenants down there, didn't you? (Same objection; same ruling.) Q. Mr. Boots, this man Fred Kirk you had hired for a year when he first went down there, had you not? (Same objection; same ruling.) Q. I wish to ask him relative to this assault he made; this is something he did himself; it is not something that he heard of anybody else doing; something he did himself, to show his disposition, his character, and that at this time he did make an assault- (Interrupted by objection of counsel for appellant.) Q. While he was lying on the couch with the broken leg, at your solicitation and in your presence didn't your wife strike him twice?"

There is considerable more along this same line, but the foregoing is sufficient to show the nature of the course pursued by respondent's counsel throughout the cross-examination of defendant. None of these facts-if they are facts-were competent for any purpose in this case. With these rules of evidence, respondent's counsel, with his many years of experience as a practitioner, is presumed to have been familiar. Therefore it necessarily follows that counsel's purpose in asking these questions was to get before the jury matters that were immaterial and wholly collateral to any of the issues in the case. This course of conduct pursued in the trial of a case is generally held to be misconduct; nor does counsel seriously question the impropriety of his conduct, but contends that appellant was not prejudiced thereby and that said conduct does not warrant a reversal of the judgment.

It is not every misstatement or act of misconduct on the part of counsel during the trial of a case that will warrant the granting of a new trial. Gilbert et al. v. Michigan Cent. R. Co., 116 Mich. 610,74 N.W. 1010; Chicago & A. R. Co. v. Fietsam, 123 Ill. 518, 15 N.E. 169. But these cases recognize the fact that a verdict should be set aside where such verdict was probably influenced by such conduct. City of Chicago v. Leseth, 142 Ill. 642, 32 N.E. 428.

In this case we believe the verdict was influenced by the line of cross-examination pursued by counsel for respondent. It will be noted that each succeeding question assumes that the preceding question had been answered, and answered favorably to plaintiff. The probable result of putting these questions in this manner was to give the jury the impression that the facts assumed actually existed, and that the reason why appellant objected to such questions being answered was that he was trying to keep such facts from the jury. That counsel for respondent was trying to leave this impression with the jury is apparent, not only from the manner of putting the questions, but from the unqualified declaration made by counsel, to wit:

"I wish to ask him relative to this assault he made; this is something he did himself; it is not something that he heard of anybody else doing; something he did himself, to show his disposition, his character, and that at this time he did make an assault."

Such a statement as this could hardly help producing a prejudice in the minds of the jury against the appellant, and especially so if any of the individual jurors had any respect for counsel's word.

It is further alleged by respondent that whether the conduct of counsel was such as to warrant the granting of a new trial was a matter of judicial discretion with the trial court, and that, that court having refused to grant a new trial, this court should not interfere. Of course, this is the general rule; but, where it is apparent that the trial court's discretion has been abused, this court should not hesitate to interfere. Lindsay v. Pettigrew, 3 S. D. 199, 52 N.W. 873, and in State v. Kaufmann, 22 S.D. 433, 118 N.W. 337, this court, quoting, in part, from Lindsay v Pettigrew,...