Keeley v. Great N. Ry. Co.

• Decision Date: 24 February 1914
• Citation: 156 Wis. 181,145 N.W. 664
• Parties: KEELEY v. GREAT NORTHERN RY. CO.
• Court: Wisconsin Supreme Court

156 Wis. 181

145 N.W. 664

KEELEY

v.GREAT NORTHERN RY. CO.

Supreme Court of Wisconsin.

Feb. 24, 1914.

Appeal from Circuit Court, Douglas County; Frank A. Ross, Judge.

Action by Anna Keeley against the Great Northern Railway Company. From an order on demurrer for defendant, plaintiff appeals. Affirmed.

Appeal from an order of the circuit court for Douglas county sustaining a demurrer to the complaint. The complaint, in substance, set forth that on May 13, 1907, the husband of plaintiff, while in the employment of defendant, was killed in consequence of defendant's negligence; that she brought an action against the defendant for damages under the death statute, and recovered after a trial in which she was a witness in her own behalf with reference to formal and uncontested points, and in which an employé of the defendant named Harty was called as a witness by and for the plaintiff, and gave relevant and material testimony tending to establish the liability of defendant. After verdict for the plaintiff defendant moved for a new trial on six specified grounds, three relating to errors of law by the court and the other three somewhat general and ambiguous, namely, because the verdict was contrary to law, because the verdict was contrary to the evidence, and because the verdict was for excessive damages. Attached to and made part of the motion papers was an affidavit of one Sandager, a detective in the employment of defendant, made on July 23, 1908, containing false defamatory and libelous matter with reference to plaintiff therein set forth, reflecting upon the chastity of the plaintiff. It is averred that this affidavit and the statement above referred to were wholly and entirely immaterial, irrelevant, and not pertinent to any issues involved in said action or on said motion for said new trial, and that said affidavit and statements were not material, pertinent, or relevant to any matter or subject in said action, or considered, or proper to be considered, on said motion, and that neither said affidavit, nor any of the statements therein contained, nor any of the statements quoted therefrom, were proper to be used or filed in said action or upon said motion, which facts were well known to the defendant and its attorneys and counsel at and prior to the time of making and filing said affidavit and statements. The defendant, acting by and through its attorneys at the hearing of the motion for a new trial, in the presence of the circuit judge and others, read said affidavit and statements in open court. The presiding judge filed an order in said court denying defendant's motion for a new trial, which order contained the following statement: “The affidavits of Zearfoss, Barr, and Sandager presented by defendant's counsel, in the opinion of this court, are improper and ought not to be considered, and they are not considered on the decisions of the several motions.” This order and the decision of the circuit judge were affirmed by the Supreme Court of this state on the appeal of the defendant therefrom. The statements contained in said affidavit and quoted were wholly and entirely false, and this fact was well known to the defendant at and prior to the time of filing and reading of said affidavit. On the day the affidavit was presented and filed in the circuit court plaintiff caused to be served on the defendant a notice in writing, advising the defendant of the filing of said libelous affidavit and statements by its said attorneys, but the defendant failed and neglected to take any action of any kind, disapproving of the conduct of its said attorneys and counsel, or in any manner disaffirming or repudiating such conduct or such libelous statements, but on the other hand, after receipt of this notice by and through its attorneys, caused and procured said affidavit containing the alleged libelous statements to be filed in the office of the clerk of the circuit court for Eau Claire county, and thereafter to be filed with the clerk of the Supreme Court of the state of Wisconsin, and failed and neglected to make any effort or request to withdraw from the files said affidavit and such statements therein contained. It is further averred that the acts and conduct of said Sandager and of said attorneys were fully ratified, approved, and confirmed by the defendant, and that the said acts and conduct were malicious, vindictive, and with the intention and for the purpose of injuring, damaging, and destroying the good name and reputation of the plaintiff, and to cause her shame, humiliation, disgrace, and degradation. It is also averred that the plaintiff has always been, and is now, a woman of chaste character and of good reputation.Dietrich & Dietrich, of Superior, for appellant.

John A. Murphy, of Superior, for respondent.

TIMLIN, J. (after stating the facts as above).

[1] The demurrer must be taken to admit the good character, chastity, and good reputation of the plaintiff and the falseness of the accusations against her contained in the affidavit of Sandager, also the agency of the defendant's attorneys for defendant in procuring and filing this affidavit and the ratification by defendant of their acts in so doing, by neglect, after notice, to take any action to withdraw or repudiate said affidavit or the libelous statements therein contained. On the other hand, it cannot be taken to admit the pleader's conclusions that the affidavit and its contents were irrelevant because the facts upon which such conclusions are based are set forth in the complaint. The case is, from one viewpoint, well calculated to arouse sympathy for the plaintiff and indignation against the defendant. The latter, upon motion for a new trial in the personal injury action reported in 139 Wis. 448, presented the affidavits of Zearfoss and Barr, and that of its detective Sandager, the first two suggesting that one Harty, a witness for the plaintiff in that action, upon whose testimony the verdict largely rested, was a liar and perjurer, and the third charging that he was a self-confessed thief, but also containing, among other things, actionable aspersions upon the chastity of plaintiff, resting upon the hearsay statements of this man Harty, whose sworn testimony they at the same time contended was unworthy of belief. These hearsay statements were supplemented by a somewhat vague statement of the...