Leslie v. Knudson
| Decision Date | 13 October 1931 |
| Parties | LESLIE v. KNUDSON. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Dane County; August C. Hoppmann, Circuit Judge.
Action by Mary Leslie against Oscar Knudson. From a judgment for defendant, plaintiff appeals.--[By Editorial Staff.]
Reversed and remanded.
The judgment, entered November 24, 1930, dismissed the plaintiff's complaint in an action for malicious prosecution.
The plaintiff resides at Cobb, Wis. She is a widow, and supports three children by taking in washing. She did washing for the family of the defendant, and claimed to have $2.50 owing to her by the defendant. She sent her daughter to ask defendant for the balance. There was some talk between the daughter and the defendant as to whether the bill was owing, during the course of which defendant denied owing the debt and finally said, “let her try and get it.” The daughter reported this conversation to plaintiff, and on the same day plaintiff wrote the following letter to the defendant:
“Mr. Knudson:
You told Kathryn to try and get the $2.50 you owe me. $1.00 bal. on last wash, $1.50 on extra wash that was sent down when your wife was sick. Now this is the way I have of getting it by exchanging at the restaurant, and don't blame your employees as I'll have the goods in basket then tell them that you told us to try and get it.
Yours very truly,
Mrs. Leslie.
P.S. And thank you very kindly.”
After writing the letter, the plaintiff went to the store of the defendant and told the clerk that defendant owed her the bill and that she wanted groceries for it. The clerk said, “Did he tell you that you could get the groceries?” The plaintiff replied, “No, he didn't tell me I could get the groceries, but he told me to try and get it and groceries are as good to me as money.” The plaintiff then testified that the clerk went around picking up the groceries and gave them to her and figured up the bill. The groceries came to $2.62 and plaintiff paid the twelve cents balance over and above the $2.50 claimed to be owing from the defendant, and left the store with the groceries. The same evening defendant sent word to the plaintiff that she should get the goods back by 9 o'clock or he would have her arrested and have her mother's pension stopped. Plaintiff was arrested for larceny on November 18, 1929, by the sheriff of Iowa county. The arrest was made after seeking the advice of Charles Pile, an attorney and postmaster of Dodgeville. The district attorney was not consulted before the warrant was issued and the arrest made. At the trial before the justice, the justice found the plaintiff not guilty of larceny, and further found that the complaint was willful and malicious, and without probable cause, and taxed the costs against the defendant Knudson.
The case was tried before the court and a jury. At the close of plaintiff's testimony, the court directed a verdict for the defendant upon the ground that it appeared from the undisputed evidence that there was probably cause for prosecution.
Kopp & Brunckhorst, of Platteville, for appellant.
J. Charles Pile, of Dodgeville, and Hall, Baker & Hall, of Madison, for respondent.
[1] The first error assigned relates to the refusal of the trial court to allow plaintiff's counsel to read to the jury portions of the adverse examination of defendant. Upon the trial, plaintiff was called and gave her testimony, and, after a witness was called out of turn to lay the foundation for punitory damages by testifying to defendant's wealth, the defendant was called adversely. After identifying the defendant, counsel for plaintiff announced that he was going to read from page three of the adverse examination of defendant. Objection was made by the defendant that it was not proper for plaintiff to read from the adverse examination, except for the purpose of cross-examining the witness on the stand, if he should testify differently than he did at the time of the adverse examination. Counsel for plaintiff announced that that was his purpose, and counsel for defendant called attention to the fact that the witness had not testified to anything yet. The court said:
This ruling was erroneous. Subdivision (5) of section 326.12, Stats., provides: “Such portions of any such deposition as are relevant to the issues may be offered by the party taking the same, and shall be received when so offered upon the trial of action or proceeding in which it is taken, notwithstanding the deponent may be present.”
In Meier v. Paulus, 70 Wis. 165, 35 N. W. 301, 303, which case antedates subdivision (5), § 326.12, it was said: “The examination of a party is in the nature of an admission so far as his answers are material to the issues in the action, and such admissions are always admitted as original evidence against him.”
See Lange v. Heckel, 171 Wis. 59, 175 N. W. 788;Thomas v. Lockwood Oil Co., 174 Wis. 486, 182 N. W. 841;Lamberson v. Lamberson, 175 Wis. 398, 184 N. W. 708;J. H. Clark Co. v. Rice, 127 Wis. 451, 106 N. W. 231, 7 Ann. Cas. 505;Anderson v. Chicago B. Co., 127 Wis. 273, 106 N. W. 1077; and Hughes v. C., St. P., M. & O. R. Co., 122 Wis. 258, 99 N. W. 897.
[2] The matter is fully discussed by the foregoing cases, and the rule established to the effect that the adverse examination of a party, so far as competent, constitutes evidence against him, and may be offered, notwithstanding his presence in court.
[3] It does not follow, however, that plaintiff was prejudiced by the court's ruling. As a part of her cross-examination of the defendant, plaintiff was permitted to read to the defendant the questions asked and answers given upon the adverse examination. The defendant admitted having made the answers as indicated by the transcript of the examination, and consequently plaintiff was able to put into evidence in a slightly different manner all of the adverse examination which she had previously proposed to read. Hence she cannot be said to have been prejudically affected by the ruling.
[4][5] Appellant further objects to the ruling of the trial court whereby defendant's counsel was allowed, over objection, to examine the defendant at the close of the adverse examination. Appellant relies on O'Day v. Meyers, 147 Wis. 549, 133 N. W. 605, in which it was held that where a party is properly called for cross-examination, his counsel has no right to re-examine him at the close of such cross-examination. The ruling in that case was modified in...
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