Lehan v. Chi. & N. W. Ry. Co.

• Decision Date: 27 May 1919
• Court: Wisconsin Supreme Court
• Parties: LEHAN v. CHICAGO & N. W. RY. CO.

169 Wis. 327

172 N.W. 787

LEHAN

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

May 27, 1919.

Appeal from Municipal Court of Brown County; N. J. Monahan, Judge.

Action by William J. Lehan against the Chicago & Northwestern Railway Company. Special verdict and judgment for plaintiff, and defendant appeals. Reversed, and record remanded, with directions to enter judgment for defendant.

This action was brought for personal injuries claimed to have been received by plaintiff while being ejected from one of defendant's passenger trains at Rhinelander, Wis., on October 16, 1916, at about 11 o'clock p. m.

Defendant admitted the purchase by plaintiff of a ticket for passage on its train from Rhinelander to Appleton Junction, and by way of answer alleged that, when plaintiff presented himself as a passenger to board the train, he was intoxicated and under the influence of liquor, that he was refused entrance to the train by the defendant's employés, and that in spite of such refusal he forced his way onto such train, and that immediately thereafter the train was stopped and the plaintiff carefully, and without unnecessary force, and without injury to him, lawfully removed and ejected from the said train; the sole reason being his intoxicated condition.

Upon the trial the defendant was permitted to amend its answer by alleging, as an additional reason in justification for the ejection of the plaintiff, the alleged fact that the plaintiff, while upon said train, used violent, abusive, profane, and indecent language, and for which use the plaintiff was lawfully removed and ejected without injury from the train.

The substance of the special verdict and the answers returned by the jury thereto were as follows:

(1) The defendant company accepted the plaintiff as a passenger on its train on the night in question.

(2) The plaintiff was not intoxicated when he entered upon the train.

(3) He did not use and utter abusive, profane, and indecent language while upon said train.

(4) The defendant's employés used excessive force upon plaintiff in causing his ejection.

(5) The defendant's employés did not use proper care in causing his ejection.

(6) The plaintiff sustained injuries to his person while on and being ejected from the train.

(7) Such injuries were caused by the act or omission of defendant's employés.

(8) The amount assessed for plaintiff's damages was $8,000.

From a judgment thereupon in favor of the plaintiff, defendant has appealed.R. N. Van Doren, of Milwaukee, for appellant.

Martin, Martin & Martin, of Green Bay, for respondent.

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

[1] On the trial the plaintiff called as an adverse witness defendant's claim agent, who had investigated this case and obtained written statements from various persons. He testified, apparently without objection being interposed, giving the names and addresses of the witnesses with whom he had talked, and that he had in his possession written reports made by the local physicians of the defendant company at Rhinelander and Appleton. Demand was made by plaintiff's counsel for the production of the report of the physician at Rhinelander, but that, on objection, was refused. He was then compelled to answer, over objection, that, based upon such report, he understood there had been a treatment by the company's doctor of the plaintiff, and gave the number of days of such treatment; also, further, that from knowledge obtained only by interviews with the physician at Appleton he was again permitted to testify as to plaintiff's treatment by that physician, and that he presumed the defendant had paid the bill for such treatment, and then, over vigorous protest and objection on the ground that such method of examination was eliciting hearsay, incompetent, and irrelevant testimony, he was still further required to testify as to such matters.

All this was hearsay, and there was nothing of material, relevant, or competent testimony on the issues that was obtained or could be obtained from this witness through all of his protracted examination. It should have been promptly and firmly halted by the trial court when the objections were interposed. Permitting the examination of the witness to proceed in the manner in which it was being conducted could very well have a prejudicial effect upon a jury.

[2][3][4] Plaintiff's counsel further demanded, at the time of the examination of other witnesses called by the defendant, the production of the statements made by such witnesses respectively to the claim agent. Upon cross-examination of O'Brien, the city policeman, and one of such witnesses, such demand was stated to be for the purpose of cross-examination. Upon refusal of defendant's counsel to produce it, on the ground that it was not a proper matter of evidence, the court stated: “I don't see how I can compel them to produce it.” After such ruling, and further refusal to produce such statement, the witness was then asked as to whether he had not told the claim agent that the plaintiff, in witness' opinion, was not drunk at the time in question, and over objection the question was in substance repeated, thereby in effect assuming that the witness had so stated in such report.

To better show the method of examination pursued and permitted with reference to two other of defendant's witnesses, not employés, it is necessary to set forth from the record as follows:

“Mr. Martin: At this time I ask the defendant to produce the statement which it has got now in its possession--the statement given by this witness [Chris Rouman] October 20th.

Mr. Van Doren: I decline to produce it.

Mr. Martin: Q. Do you think, if you got that statement, it might help you to clear up things in your mind any?

(Objection as improper. Sustained. Exception.)

Q. Do you want that statement to look--do you want that statement which you made October 20th last, and gave to Mr. Dockery, to enable you to recall the facts and circumstances better than what you probably can without? (Objection as an improper question; the witness has not indicated any desire for that. Objection overruled. Exception.)

Q. Would you like to have the statement for that purpose? A. Well, I don't know.

Q. Do you want it now to look it over? A. It makes no difference to me.

Q. You think that everything is just as clear in your mind to-day as it was on the 20th of last October? A. I will say this: I may have forgotten some; it is quite a while ago since this happened.

Q. Of course, you know that the case is being tried now, and it is quite important that you tell us everything as accurately as you can? A. Well, I told the best I could remember.

Q. And you don't seem to want to have your memory refreshed? (Objection to that method of examination as improper; objection as not proper.)

Q. You don't seem to want to have your memory refreshed by reference to that typewritten statement which counsel has got, do you? (Objection as improper. Sustained. Exception.)

Court: If the witness were an employé of the railway company, you would be entitled to it.”

None of these documents, statements, or reports thus sought to be produced and used. either as of employés of defendant, or persons in no wise connected with it, were in any manner part of the res gestæ, nor could they be received as tending to show notice to the defendant of the happening of the event, for no such issue was in the case. They were not in the nature of declarations of any person who could thereby bind the defendant. Kamp v. Coxe Bros. Co., 122 Wis. 206, 212, 99 N. W. 366;Zentner v. Oshkosh Gas Lt. Co., 126 Wis. 196, 201, 105 N. W. 911;Warner v. Maine Cent. R. Co., 111 Me. 149, 88 Atl. 403, 47 L. R. A. (N. S.) 830.

[5] Whether these reports or statements, or any of them, should be classed as privileged communications, as some authorities hold (Ex parte Schoepf, 74 Ohio St. 1, 77 N. E. 276, 6 L. R. A. [N. S.] 325;Cully v. N. P. Ry. Co., 35 Wash. 241, 77 Pac. 202), it is not necessary to decide. They were not admissible as evidence in plaintiff's behalf of any facts therein recited, nor were they documents which the party holding them should be required to produce at the desire of the other. Powell v. N. P. R. Co., 46 Minn. 249, 48 N. W. 907;Wabash R. R. Co. v. Farrell, 79 Ill. App. 508;Davenport Co, v. Penn. R. R. Co., 166 Pa. 480, 31 Atl. 245;Carroll v. E. T. V. Co., 82 Ga. 452, 10 S. E. 163, 6 L. R. A. 214; A., T. & St. F. Ry. Co. v. Burks, 78 Kan. 515, 96 Pac. 950, 18 L. R. A. (N. S.) 231.

It is as legitimate and proper for a defendant to interview persons who may be acquainted with the facts and circumstances surrounding the subject-matter of a litigation as it is for a plaintiff to pursue the same methods. Statements and information of the nature of the ones before us in this case, when obtained by either party to an occurrence which may result in a lawsuit, are not proper or legitimate evidence for the other party as to facts therein recited, and an opposing party has no right to compel the production of such statements, nor to question the person who may have obtained them as to the contents of such statements. They are no more subject to compulsory production at the demand of the opposite party on the trial, when made by witnesses produced at the trial, than would be such statements made by persons not called as witnesses....