Heintz v. Schenck
| Decision Date | 07 February 1922 |
| Citation | 176 Wis. 562,186 N.W. 610 |
| Parties | HEINTZ v. SCHENCK. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Milwaukee County; John J. Gregory, Judge.
Action by Fred Heintz against Otto J. Schenck. Judgment for plaintiff, and defendant appeals. Modified and affirmed.
Personal injury. From the complaint it appears that Kenwood boulevard and Maryland avenue are public highways in the city of Milwaukee, Kenwood boulevard extending in an easterly and westerly direction, and Maryland avenue in a northerly and southerly direction, intersecting each other at right angles; that on October 23, 1919, the plaintiff was driving a Ford truck along and upon Kenwood boulevard in a westerly direction and across the intersection of the boulevard with Maryland avenue, in a careful and prudent manner, and was upon the right side of the highway; that the defendant was driving his automobile in a northerly direction on Maryland avenue and across Kenwood boulevard at a negligent and reckless rate of speed, in violation of the laws of the state of Wisconsin, the rules of the road, and the ordinances of the city of Milwaukee; that the plaintiff's truck was struck by the defendant's automobile, due to the negligence of the defendant, and as a consequence the plaintiff sustained serious and permanent injuries. The plaintiff was a painting contractor with an earning capacity of $300 per month. A second cause of action was stated as a basis for a claim of $500 damage to plaintiff's automobile.
By the answer the material allegations of the complaint were put in issue. The case was tried by the court and jury, and the jury returned a special verdict by which it found that the defendant failed to exercise ordinary care in the management and control of his automobile at and immediatelyprior to plaintiff's injury, that such failure to exercise ordinary care was the proximate cause of plaintiff's injury, and that the plaintiff was not guilty of contributory negligence, and assessed the plaintiff's damages at the sum of $8,000.
There were the usual motions after verdict. Sixty days after the rendition of the verdict having passed without the court having acted upon the motion for a new trial, it was denied, and judgment was thereupon entered in favor of the plaintiff for $8,000 and costs. The court, however, at the request of the plaintiff, expressed the opinion that he would have denied the motion for a new trial, but would have reduced the damages to $5,000. From the judgment entered the defendant appeals.
Glicksman, Gold & Corrigan and Robert Wild, all of Milwaukee, for appellant.
Dale C. Shockley, of Milwaukee (Edgar P. Ettenheim and L. A. Schweichler, both of Milwaukee, of counsel), for respondent.
ROSENBERRY, J. (after stating the facts as above).
On behalf of the defendant it is contended that the verdict is contrary to all reasonable probabilities and should, for that reason, be set aside, and it is further contended that the plaintiff should be held guilty of contributory negligence as a matter of law. We have carefully reviewed the evidence and are convinced that there is ample, credible evidence to sustain the finding of the jury, both as to the negligence of the defendant and as to the want of contributory negligence on the part of the plaintiff. We shall not set out or discuss the evidence in detail, as no useful purpose will be served thereby.
[1] The defendant further contends that a new trial should be granted because of improper remarks of plaintiff's counsel during the course of the trial. It appears that during the absence of the official reporter a colloquy between counsel took place, and upon the return of the reporter the following record was made:
“By Mr. Gold (attorney for defendant): Now, Mr. Shockley (attorney for plaintiff) asked me whether I represented an insurance company, and I told him: ‘No.'
By Mr. Shockley: He made the statement first.
By the Court: This is highly improper. The jury will disregard this. It has no place in this case.
By Mr. Shockley: I submit that the statement made by counsel first--he ventured the remark--
By the Court: I said this has nothing to do with the case. Neither one of you have any business talking about that feature. It has nothing to do with the case.
By Mr. Gold: So that your honor and the jury will understand that I didn't say anything--counsel asked me whether I wanted to ask Mr. Heintz any more questions, and I said: ‘Not until I get the statements from the Standard Accident Insurance Company.'
By Mr. Shockley: He didn't say that. He said he wanted statements from the insurance company, and I said, ‘Is that your insurance company?’ and he said he didn't represent any insurance company. It is false.
By Mr. Gold: I object to that.
By the Court: The objection will be sustained. This is not an issue in this case, and counsel cannot make it an issue. This has nothing to do with this case, and the jury will disregard it.”
This assignment is based upon Chybowski v. Bucyrus Co., 127 Wis. 332, 106 N. W. 833, 7 L. R. A. (N. S.) 357. We do not think this case comes within the principle of that case. The talk about an insurance company seems to have originated with counsel for defendant, and we are unable to determine from the record whether counsel for defendant was trying to tell the jury that the plaintiff had indemnity insurance or whether plaintiff's counsel was trying to bring out the fact that Mr. Gold represented an insurance company. Neither counsel for plaintiff nor defendant were justified in the course which they pursued. We are unable to discover any prejudicial error, and such error as there was, if any, was cured by the prompt and vigorous direction of the court to the jury that it should be disregarded.
[2] It appears that several days after the verdict in this case was returned Richard Genz, who was foreman of the jury, was examined by Mr. Gold, counsel for the defendant in this case, on his voir dire in another case. Upon this examination Mr. Genz was asked the following question:
He replied:
“A. If there was no blame on the plaintiff's part?
Mr. Gold: Q. Yes.
Mr. Genz: A. Why, yes; he is entitled to some money.”
Waiving the question whether or not a disqualification subsequently appearing might be urged as a ground for a new trial in a prior action, we are of the opinion that the question and answer do not show a disqualification in any case. The juryman might well have declined to answer the question because of its indefiniteness and uncertainty, but a juryman called in the rather embarrassing and unusual circumstances of being examined in open court would hardly take it upon himself to...
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