Kink v. Combs

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtHEFFERNAN
Citation135 N.W.2d 789,28 Wis.2d 65
Decision Date25 June 1965
PartiesMartin KINK et al., Respondents, v. Maurice COMBS, Appellant.

Page 789

135 N.W.2d 789
28 Wis.2d 65
Martin KINK et al., Respondents,
v.
Maurice COMBS, Appellant.
Supreme Court of Wisconsin.
June 25, 1965.

William L. McCusker, Madison, for appellant.

Jack McManus, Madison, Hart, Kraege, Jackman & Wightman, Madison, of counsel, for respondents.

HEFFERNAN, Justice.

In the opening statement to the jury Mr. McManus, trial counsel for the plaintiff, stated:

'The testimony will be that * * * Mrs. Kink felt * * * a hard object which she will testify in her opinion was a sexual organ * * * that she was covered with saliva and subsequently[28 Wis.2d 70] that upon this black dress, which we shall enter into evidence, she will testify that semen stains were ejected upon this dress by Mr. Combs, who had his physical organ exposed.'

In fact, however, Mrs. Kink did not testify that the hard object was a sexual organ or that semen stains were ejected upon the dress. The defendant contends that this reference to matters that were not in evidence was highly prejudicial and constitutes grounds for reversal of the verdict. We do not agree. An assertion made in an opening statement or in closing argument need not be founded upon direct evidence, provided that the facts so asserted may be inferred from the evidence. 1 Horgen v. Chaseburg State Bank (1938), 227 Wis. 510, 515, 279 N.W. 33; and Affett v. Milwaukee

Page 793

& S. T. Corp. (1960), 11 Wis.2d 604, 607, 106 N.W.2d 274, 86 A.L.R.2d 227.

'A statement as to a matter that may be fairly inferred from the evidence is not within the condemnation of the rule.' 3 Am.Jur., Appeal and Error, p. 614, sec. 1073.

Our court has long recognized the necessity for a reasonable latitude in oral argument even after the evidence is in. Rogers v. Rosenfeld (1914), 158 Wis. 285, 149 N.W. 33. In the instant case the erroneous statement was made before the first witness was sworn, and cannot be considered as a misrepresentation made after all the facts were known. Certainly the acts which plaintiffs' counsel referred to in his opening statement might reasonably be inferred from the evidence that was presented. In addition to Mrs. Kinks' testimony (supra), the cook stated that Mrs. Kinks' dress was 'terriby messed' and that Mrs. Kink referred to it as being 'specked.'

The able and experienced trial judge properly analyzed the evidence in a comprehensive written opinion:

[28 Wis.2d 71] 'In addition to the testimony of Marcella Kink there was testimony of other witnesses, including that of the cook who was in the kitchen nearby at the time of the assault, relative to the nature of the assault, stains on the dress she was wearing at the time, and injury to her leg. Viewing the evidence as a whole and viewing the evidence of Marcella Kink in particular, we are satisfied that there was room for the jury to draw the inference that defendant, in assaulting the plaintiff Marcella Kink, had pressed up against her body with his privates and that there had been an emission against her dress. Upon the other hand, the jury could well have rejected any such inference. It was for the jury to analyze the evidence upon this point and accept or reject the contentions of the respective parties in regard thereto. We regard the matter as within the realm of reasonable inference and not within the realm of guess, speculation, or conjecture. Under the instructions of the court we can presume that, if the jury entertained a doubt, that it would not resort to guess, speculation, and conjecture but would resolve the matter against the plaintiffs * * *. We can not say that counsel for the plaintiffs acted in bad faith or that he made any deliberate misrepresentation or misleading statements with respect to what he fairly expected the evidence to show. We can not assess prejudicial misconduct against him and defendant's motion in this regard must be denied.'

Additionally, we would not set aside the trial court's determination in this regard in the absence of a clear abuse of discretion. Schneck v. Mutual Service Cas. Ins. Co. (1964), 23 Wis.2d 649, 659, 128 N.W.2d 50; DeRousseau v. Chicago St. P., M. & O. R. Co. (1949), 256 Wis. 19, 39 N.W.2d 764. Upon a review of the entire record, it cannot be said that the trial court abused its discretion; rather it properly exercised that discretion on the basis of the evidence presented in the course of trial. Frequently the gauge by which allegedly prejudicial statements are measured is the appropriateness of the verdict. It cannot be said that the damages, though admittedly high, were so [28 Wis.2d 72] excessive as to reflect passion or prejudice induced by an improper statement. The trial court concluded that upon a review of the evidence, the arguments, and briefs, that justice was done.

Furthermore, we cannot conclude that defendant, with full knowledge that the arguments of plaintiffs' counsel in the opening statement are not directly supported by the evidence, can lie back and be heard to complain only after an adverse verdict has been returned. If the defendant had been prejudiced, the fact that the evidence was not probative of plaintiffs' counsel's remarks was known to him at the close of plaintiffs' case. By failing to move for a

Page 794

mistrial at that time defendant waived his right to assert prejudice later. Under analogous situations we have held that counsel claiming prejudice by reason of counsel's misconduct must promptly make proper objections to the court. See Basile v. Fath (1925), 185 Wis. 646, 201 N.W. 247, 202 N.W. 367; State ex rel. Sarnowski v. Fox (1963), 19 Wis.2d 68, 119 N.W.2d 451. In the Basile Case it was alleged that during the argument to the jury, matters not before the jury were referred to. We said in that case, '* * * counsel having remained silent when he could or should have spoken on such a matter so clearly requiring immediate action by the court ought not to be permitted, after verdict against him, to try again.'

In the instant case the defendant, if he felt aggrieved, should have moved for mistrial at the close of the plaintiffs' case. See Smith v. Rural Mut. Ins. Co. (1963), 20 Wis.2d 592, 605, 123 N.W.2d 496.

Failure to make a timely motion can only be construed as an election to rely on the possibility of a favorable jury verdict. In Frion v. Craig (1957), 274 Wis. 550, 555, 80 N.W.2d 808, 811, where the conduct of a juror was in question, we stated:

[28 Wis.2d 73] 'Such course of action is open to the obvious interpretation that he preferred to continue with the trial and take his chances with the outcome rather than move for a mistrial. * * * We consider that counsel thereby waived the issue of possible misconduct of a juror, which waiver precludes him from raising the issue on this appeal.'

See also Wetzler v. Glassner (1925), 185 Wis. 593, 598, 201 N.W. 740; and City of Milwaukee v. Milwaukee Amusement, Inc. (1964), 22 Wis.2d 240, 255, 125 N.W.2d 625.

The defendant also claims prejudicial error was committed by admitting in evidence the dress that Mrs. Kink allegedly wore at the time of the attack. Mrs. Kink testified that she wore the dress at the time of the assault and thereafter did not wear it, but put it away in a box. In December she gave the dress to one of her waitresses, who testified that since it did not fit, she did not wear it, but put it on a hanger in her closet. Mrs. Kink was informed that the dress might have some evidentiary value, so she got it back. She then gave the dress to Mr. Elliott, an associate in the office of her trial counsel. Mr. Elliott produced the dress at the trial. 2 The 'chain of evidence' is thus complete, and there is no reason to doubt the authenticity of this exhibit. The defendant also objected on the basis that there was no proper identification of the stains on the dress. The plaintiff introduced[28 Wis.2d 74] testimony that the dress had not been cleaned nor tampered with since the assault. There was evidence that after the dress was given to Mr. Elliott that it was thrown on a chair in his office for several weeks. This technique can hardly be recommended as an ideal way to preserve evidence, however, there was testimony that the dress was in substantially the same condition as it was after the assault. As stated by Conrad on Evidence, Vol. 1, sec. 734, p. 622:

'Whether there has been a material change is for the determination of the trial court, which has wide discretion in the matter.'

Page 795

In this case it was within the discretion of the court to overrule the objection to admission and to leave to the jury the evaluation of the evidence. The able counsel for the defendant enjoyed the right of full cross examination in respect to the careless handling of the dress and as the trial court said, 'fully exploited' his position in respect to the weight of this piece of evidence in his argument to the jury.

The plaintiff failed to produce any scientific evidence to show that the marks on the dress were semen stains. In argument before the jury, the defense attorney properly commented upon this failure of proof. However, when the plaintiff wished to argue the point and to explain this failure, he was admonished by the trial judge, who thereupon instructed the jury that neither counsel could comment on any evidence not...

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89 practice notes
  • SHOREWOOD SCHOOL DIST. v. Wausau Ins., No. 90-1440
    • United States
    • United States State Supreme Court of Wisconsin
    • May 20, 1992
    ...of the tortfeasor and deterrence. Lisowski v. Chenenoff, 37 Wis. 2d 610, 633, 168 Wis.2d 417 155 N.W.2d 619 (1968); Kink v. Combs, 28 Wis. 2d 65, 80, 81, 135 N.W.2d 289 (1965); Restatement of Torts (Second), sec. 908, Comment a (1977). The court concluded that the reasoning applied in Ciesl......
  • Lundin v. Shimanski, No. 83-620
    • United States
    • United States State Supreme Court of Wisconsin
    • June 5, 1985
    ...sustain an award for punitive damages. '[M]alice or vindictiveness are not the Page 687 sine quo non of punitive damages.' Kink v. Combs, 28 Wis.2d 65, 79, 135 N.W.2d 789 (1965). It is sufficient if the injured party shows a reckless indifference to or disregard of the rights of others on t......
  • State v. Messelt, No. 91-2060-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • June 23, 1994
    ...clung to the common law's strict prohibition against a juror giving evidence that might impeach a verdict. For example, in Kink v. Combs, 28 Wis.2d 65, 78, 135 N.W.2d 789 (1965) this court prevented a juror from testifying that she assented to a verdict only because of fatigue. And in Bolle......
  • Harris v. County of Racine, Civ. A. No. 80-C-635.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • May 4, 1981
    ...I am aware that historically in Wisconsin punitive damages have not been considered to have any compensatory function. Kink v. Combs, 28 Wis.2d 65, 81, 135 N.W.2d 789 (1965). It is my opinion, however, that particularly in discrimination cases where the provable financial injuries to the vi......
  • Request a trial to view additional results
89 cases
  • SHOREWOOD SCHOOL DIST. v. Wausau Ins., No. 90-1440
    • United States
    • United States State Supreme Court of Wisconsin
    • May 20, 1992
    ...of the tortfeasor and deterrence. Lisowski v. Chenenoff, 37 Wis. 2d 610, 633, 168 Wis.2d 417 155 N.W.2d 619 (1968); Kink v. Combs, 28 Wis. 2d 65, 80, 81, 135 N.W.2d 289 (1965); Restatement of Torts (Second), sec. 908, Comment a (1977). The court concluded that the reasoning applied in Ciesl......
  • Lundin v. Shimanski, No. 83-620
    • United States
    • United States State Supreme Court of Wisconsin
    • June 5, 1985
    ...sustain an award for punitive damages. '[M]alice or vindictiveness are not the Page 687 sine quo non of punitive damages.' Kink v. Combs, 28 Wis.2d 65, 79, 135 N.W.2d 789 (1965). It is sufficient if the injured party shows a reckless indifference to or disregard of the rights of others on t......
  • State v. Messelt, No. 91-2060-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • June 23, 1994
    ...clung to the common law's strict prohibition against a juror giving evidence that might impeach a verdict. For example, in Kink v. Combs, 28 Wis.2d 65, 78, 135 N.W.2d 789 (1965) this court prevented a juror from testifying that she assented to a verdict only because of fatigue. And in Bolle......
  • Harris v. County of Racine, Civ. A. No. 80-C-635.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • May 4, 1981
    ...I am aware that historically in Wisconsin punitive damages have not been considered to have any compensatory function. Kink v. Combs, 28 Wis.2d 65, 81, 135 N.W.2d 789 (1965). It is my opinion, however, that particularly in discrimination cases where the provable financial injuries to the vi......
  • Request a trial to view additional results

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