Hutter Northern Trust v. Door County Chamber of Com.

• Decision Date: 20 September 1972
• Docket Number: No. 71-1300.,71-1300.
• Citation: 467 F.2d 1075
• Parties: HUTTER NORTHERN TRUST et al., Plaintiffs-Appellants, v. DOOR COUNTY CHAMBER OF COMMERCE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

467 F.2d 1075 (1972)

HUTTER NORTHERN TRUST et al., Plaintiffs-Appellants, v. DOOR COUNTY CHAMBER OF COMMERCE, Defendant-Appellee.

No. 71-1300.

United States Court of Appeals, Seventh Circuit.

Argued June 9, 1972.

Decided September 20, 1972.

Rehearing Denied November 3, 1972.

John A. Hutter, pro se.

Sven V. Kirkegaard, James R. Smith, Sturgeon Bay, Wis., for defendant-appellee.

Before SPRECHER, Circuit Judge, DURFEE, Senior Judge, United States Court of Claims,^* and ESCHBACH, District Judge.^**

DURFEE, Senior Judge.

Plaintiff Hutter, acting pro se, brought this action, based upon diversity of citizenship, in the United States District Court for the Northern District of Illinois. The essence of plaintiff's complaint is that he was illegally ousted from the Chamber of Commerce of Door County, Wisconsin, and as a consequence, has suffered considerable damage, including the loss of his business, the Chateau Hutter, a summer resort located in that county. The complaint, obviously drafted by a pro se plaintiff with little or no experience in pleading or practice, alleges causes of action for damages for breach of contract, interference with contract rights, deprivation of civil rights, and possibly for libel, slander, conspiracy and other wrongs. Issue was joined and a lengthy trial ensued, with over 1,200 pages of transcript of testimony. After plaintiff rested its case, defendant made a motion for a directed verdict, which was granted by the court. Plaintiff now appeals. The judgment of the District Court is reversed and the case remanded for a new trial.

In granting defendant's motion, the trial court concluded that "there has not been sufficient evidence offered and admitted by the court on behalf of plaintiff, either on the question of liability or damages to warrant the submission of the case to you as jurors. * * * In the opinion of the court, there is no competent evidence upon which the jury could base a valid finding against the defendant." This was a correct statement of the legal requirement for a directed verdict. Plaintiff's appeal asserts a plethora of challenges to this order, but does include the usual ground that there was sufficient evidence to warrant the submission of "the cause to the jury."

Plaintiff presented his case pro se. Although the trial judge stated that "Hutter is an experienced lawyer", plaintiff stated that he had never tried a lawsuit and never appeared before a jury. Our review of the record supports this conclusion that plaintiff lacked even the minimal amount of legal experience and ability to adequately represent himself pro se.

In attempting to present evidence to support his cause in over 1,210 pages of transcript, plaintiff was confronted with a constant fusillade of over 1,800 objections by defendant's counsel without any reason therefor being stated. These incessant objections were usually sustained by the trial judge without any statement of the basis for the ruling, despite plaintiff's many requests therefor because of his inexperience with the rules of evidence. Plaintiff was thus constantly thwarted in his attempts to present testimony in support of his case. Out of the 1,210 pages of the transcript, there are less than 100 pages of admitted testimony. This is not to imply that all of the questions propounded by plaintiff were unobjectionable. However, as the trial progressed, it is apparent that its usual sequence was for plaintiff to ask a question, for defense counsel to object, and for the court to sustain the objection, without stating any grounds for the ruling, as requested by plaintiff.

For instance, plaintiff on direct examination of Robert Metivir, a witness who had been a guest at Hutter's resort, did ask leading questions, which if properly presented, could have been relevant and material. When the court sustained defendant's objections, the following colloquy took place:

Plaintiff: Your Honor, isn\'t it customary for counsel when he makes an objection to state the grounds for that objection?

The Court: Not when the objection is obvious.

Plaintiff: They are not obvious to counsel for plaintiff.

The Court: They are to the Court. (Tr. 395).

Consequently, no explanation was provided. The particular questions which had just been asked by plaintiff do appear to have been objectionable as leading. It cannot be assumed plaintiff would have been unable to rephrase the questions so as to make them not leading, if he had the benefit of the reasons for the court's ruling. However, in effect, this procedure was denied plaintiff. This was not merely an isolated incident, but rather characteristic of the entire trial. Thirty pages later plaintiff was questioning on direct examination another witness who had been a guest at the resort. Counsel for defendant was still objecting without specifying the grounds for doing so, and the trial judge, accordingly, was still sustaining the objections without any explanation as to the basis for his rulings:

Q. In 1961 or \'62 when you were a guest at Chateau Hutter Resort, will you describe the dining room? sic

Counsel for Defendant: Objection. Furthermore we went through that before lunch.

The Court: I sustain the objection.

Q. When you were at Chateau Hutter, what was the entertainment provided by the management?

Counsel for Defendant: Objection.

The Court: I will sustain the objection.

Q. In 1961 or \'62 when you were a guest at Chateau Hutter, is there anything you did besides sleep and eat?

Counsel for Defendant: Objection.

The Court: I sustain the objection. (Tr. 424-25).

Ten questions and ten objections later, all of the objections being sustained, the following exchange took place between plaintiff and the trial judge:

Plaintiff: It seems to me, your Honor, that this is about the time now when our opponent here, opposing counsel, should state the reason for his objection.

The Court: I will state the reason because I am the one who must assume the responsibility for the rulings. The objections to all of these questions have been sustained because the questions are not proper under the law of evidence.

Plaintiff: Why?

The Court: I don\'t—I am not a lecturer here. I used to teach but I gave that up, Mr. Hutter. I am not employed here as a lecturer on the law of evidence. I tell you as a matter of law of evidence the questions are improper and it is not incumbent on a trial judge to tell a lawyer how to ask his questions, if, indeed, they can be asked properly. That will be the only reply I care to make to your question. You may continue, sir, with your direct examination of this witness. (Tr. 427-28).

In the remaining ten pages of transcript containing the direct examination of this witness, this pattern continued, except that counsel for defendant would occasionally state the basis for his objection. Again, it is apparent that some of the objections made by counsel for defendant had a reasonable basis, although in most cases neither the court nor counsel were willing to say what this basis might be. Moreover, there were questions asked by plaintiff, which were excluded by the court, which were not obviously objectionable, if indeed they were objectionable at all. Here too, no explanation was given by the court, notwithstanding plaintiff's request. Later, during plaintiff's direct examination of his wife, the following exchange occurred:

Counsel for Defendant: May I remain standing for a while? It may save the wear and tear of getting up and down.

The Court: The government has supplied comfortable chairs. If you want to stand, you may stand.

Counsel for Defendant: Thank you.

Q. (by plaintiff): When did John Hutter and you join the Door County Chamber of Commerce?

A. Immediately after it Chateau Hutter was finished.

Q. Do you know what year that was?

Counsel for Defendant: Your Honor, may I have that question read because—

The Court: You want it read?

Counsel for Defendant: The answer, I am sorry.

The Court: The question and answer?

Counsel for Defendant: Just the answer.

The Court: Miss Reporter, please read the answer of the witness.

(Record read)

Counsel for Defendant: I move to strike the answer as not responsive to the question.

The Court: It is not responsive to the question. I do strike it and direct the jury to disregard it.

Q. What year, about, approximately, did you and John Hutter join the Door County Chamber of Commerce?

Counsel for Defendant: Objection, your Honor. It is leading.

The Court: I sustain the objection.

Q. When did the resort become a member of the Chamber of Commerce?

Counsel for Defendant: Same objection, your Honor.

The Court: I sustain the objection. (Tr. 25-27).

Q. What years was Chateau Hutter a member of the Door County Chamber of Commerce with partial privileges?

Counsel for Defendant: Objection, your Honor, to the use of "partial privileges" without definition. I object to the question for that reason.

The Court: I sustain the objection.

Q. What years was Chateau Hutter denied the privileges of membership in the Door County Chamber of Commerce?

Counsel for Defendant: Objection, your Honor, as leading and suggestive. It assumes facts not in evidence.

The Court: I sustain the objection. (Tr. 55)

Plaintiff later sought to elicit testimony on direct examination from the manager of the Door County Chamber of Commerce by way of leading questions. In response to plaintiff's claim that the witness was a hostile witness, the court responded that such had not been demonstrated. What plaintiff failed to do was to draw the distinction made in Rule 43(b) (Fed.R.Civ.P. 43(b)), between hostile or unwilling witnesses, and an adverse party or officer of an adverse party. Whereas the witness would clearly come within the latter category, and thus be subject to leading questions on direct examination, it is at least a colorable contention that he might not come within the former category. It seems somewhat incongruous that in the same proceeding in which the trial judge granted such considerable...