Basile v. Fath

— 648 — The following opinion was filed December 9, 1924: Eschweiler, J. Upon the special verdict as answered by the jury a judgment in favor of defendants dismissing the action upon the merits would have necessarily followed. The trial court, however, because he believed that the use of abusive language towards plaintiff’s counsel by defendants’ counsel in the argument to the jury might have had an effect upon the jury and that therefore the plaintiff did not have the fair and impartial trial to which she was entitled, ruled that it was his duty, in the furtherance of justice, to grant a new trial. Plaintiff’s counsel arranged with the court reporter to have the argument of defendants’ counsel to the jury taken down. In the preparation for this appeal, at the request of the plaintiff and over defendants’ objection, the trial court made a part of the bill of exceptions certain portions of the argument of defendants’ counsel to the jury so taken down, and in that manner the language so used is here presented. No objections were interposed by plaintiff’s counsel to the remarks during the argument; no request for a ruling by the court as to the right of defendants’ counsel to so address the jury, or to the propriety of such remarks; and no request made that the court should charge the jury as to such alleged impropriety or abuse of counsel’s right of argument. The trial court did not of its own motion, at the time of making such remarks or at any time before rendition of the verdict, admonish or censure counsel therefor or intimate to the jury that such remarks were improper and should have no weight in their deliberations. The bill of exceptions discloses that a number of objections were made and rulings requested by respective counsel on both sides to other remarks of opposing counsel during the arguments, and rulings then made. Sec. 2878, Stats., provides that the trial judge may, in his discretion, entertain a motion to be made on his minutes, to — 649 — set aside the verdict and grant a new trial upon exceptions or because the verdict is contrary to evidence, or for excessive or inadequate damages. It further provides for a time within which such motion, if heard upon the minutes, must be made and heard. The trial court’s disposition of this matter recognized that the relief here granted on account of the improper remarks of counsel did not come within any of the express provisions of said section. The granting of the new trial is sought to be justified upon the ground that the inherent power rests in the trial judge of a nisi prius court in this state, independent of such statute, to set aside a verdict and grant a new trial whenever such judge is satisfied that justice has not been done. Because of the conclusion that we reach in this case upon other grounds we do not decide whether or not the foregoing proposition is a correct statement of the law. It should not be overlooked, however, that in the statutes regulating the trial procedure of criminal cases, and as now found in sec. 4719, Stats., it is expressly provided by language that has constantly appeared since the enactment of sec. 6, ch. 149, R. S. 1849, that in such cases a new trial may be granted “for any cause for which by law a new trial may be granted, or when it shall appear to the court that justice has not been done. ...” This distinction between the statutory language concerning new trials in civil actions under sec. 2878, supra, and those in criminal actions, sec. 4719, supra, was spoken of in the recent decision of State v. Lavanias, ante, p. 146, 200 N. W. 672, decided, however, after the ruling by the trial court in the instant case had been made. From the very beginning, the necessity and propriety of raising questions such as are here presented during the conduct of a trial and in arguments to the jury by proper and timely objections, so that the trial court is called upon to then and there rule upon such conduct or argument, and the — 650 — preserving of the rights of a party unsuccessfully objecting, by appropriate exceptions to such ruling, has been firmly established as a part of our procedure for the trial of civil cases both by statute and repeated decisions. Sec. 174, ch. 120, Laws of 1856, part of an act to simplify and abridge the practice, pleadings, and proceedings of the courts in this state, used the precise language found in the present statute, sec. 2878, supra, namely, “a motion to be made on his minutes, to set aside a verdict and- grant a new trial upon exceptions.” Such course of objecting to improper remarks so that an immediate ruling by the court and the admonishing of counsel may avoid injurious consequences therefrom has been the procedure in the cases heretofore passing upon such situations. It is only in cases where the trial court improperly refused to sustain such objections, or where counsel, after having been ruled against and admonished by the trial court, has nevertheless persisted in objectionable conduct or methods of argument, that this court has held new trials, should have been granted. Caryl v. Buchmann, 177 Wis. 241, 244, 187 N. W. 993, held that arguments of counsel are no part of the record, and unless the objections and rulings thereon are incorporated in the bill of exceptions they will not be considered. In Kausch v. C. & M. E. R. Co. 173 Wis. 220, 224, 180 N. W. 808, an examination of the printed case discloses that objections were made and rulings had. In Sharpley v. Oconto, 167 Wis. 61, 62, 166 N. W. 789, the objection was interposed but erroneously overruled, and the granting of a new trial by the trial court was here sustained. In Kersten v. Weichman, 135 Wis. 1, 114 N. W. 499, no objection was taken to the remarks or ruling had, and consideration of such remarks was denied. In Meyer v. M. E. R. & L. Co. 116 Wis. 336, 343, 93 N. W. 6, the same ruling was made. In Andrews v. U. S. Cas. Co. 154 Wis. 82, 91, 142 N. W. — 651 — 487, there were objections interposed and persistence in the objectionable language after adverse rulings. In Rudiger v. C., St. P., M. & O. R. Co. 101 Wis. 292, 297, 77 N. W. 169, as there stated, “numerous exceptions” were taken to the line of argument persisted in by counsel notwithstanding. In Andrews v. C., M. & St. P. R. Co. 96 Wis. 348, 361, 71 N. W. 372, the same appeared, and it was declared (p. 362) to be the duty of the trial court at once and plainly to direct the jury to disregard objectionable remarks. This latter suggestion is again emphasized in the case of Rueping v. C. & N. W. R. Co. 116 Wis. 625, 635, 93 N. W. 843, wherein the late General Bragg displayed his wonderful powers over the English language and the jury. In Wunderlich v. Palatine F. Ins. Co. 104 Wis. 382, 394, 80 N. W. 467, the offending counsel, objection being made, withdrew his remarks and the court admonished the jury not to consider them. In Pelton v. Spider Lake S. & L. Co. 132 Wis. 219, 231, 112 N. W. 29, it was held that a prejudicial remark of even the trial court must be excepted to in order to be available as harmful error. We deem it established and proper procedure in this state, by the regulations of sec. 2878, supra, and former decisions, that counsel cannot sit in silence while being made the subject of abuse and vituperation by opposing counsel and speculate by their silence on the very reasonable theory that the violence will have a boomerang effect; or rely upon the opportunity thereby offered of either replying in kind or the far more effective method of repaying the adversary by gentleness, thereby, as was said by one quite a warrior himself in his younger days, “for in so doing thou shalt heap coals of fire on his head.” But 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. — 652 — We are therefore convinced that in this case the trial court was not warranted in setting the verdict aside and granting a new trial. By the Court. — Order reversed, and cause remanded with directions to enter judgment for the defendant upon the verdict dismissing the complaint upon the merits. The respondent moved for a rehearing. In support of the motion there was a brief by Padway, Skolnik & Winnecour, attorneys, and Joseph A. Padway, of counsel, all of Milwaukee. In opposition thereto there was a brief by Dale C. Shockley, attorney, and Paul PI. Paulsen, of counsel, both of Milwaukee. The following opinion was filed February 10, 1925: Per Curiam. It is urged by respondent on the motion for rehearing that the present decision in effect determines that the circuit court may not, in the furtherance of justice and in his discretion, grant a new trial. Such proposition, however, is not so determined in this case in the record here. Several motions were interposed after verdict by the respective parties, as recited in the statement of facts, and included among others by plaintiff requests for a new trial because the verdict was perverse and the result of prejudice and bias and because of the improper argument to the jury. The only matter discussed in the written decision by the trial judge upon such motions was the subject matter of the improper remarks, and the granting of the new trial had no other ground or reason assigned for it than that. No costs were imposed by the trial court as a condition for the granting of the new trial. On the subsequent application in the nature of an attempted rehearing, costs of such motion and none other were allowed. Under repeated decisions of this court we must indulge in — 653 — the presumption at least, from the failure to impose costs as a condition of the granting of a new trial, that the allowance of such was for that which is properly considered within the designation of an error occurring in the conduct of a trial as distinguished from any attempted exercise of judicial discretion. Siegl v. Walson, 181 Wis. 619, 627, 195 N. W. 867; Smith v. Taylor-Button Co. 179 Wis. 232, 234, 190 N. W. 999] John v. Pierce, 176 Wis. 220, 222, 186 N. W. 600; Lange v. Olson, post, p. 657, 202 N. W. 361, and Simpson v. Waukesha Co., post, p. 662, 202 N. W. 366. The presumption thus arising, that the granting of the new trial was for error as distinguished from one in the exercise of the discretionary power of the court, is made conclusive from the record here showing that the court did not dispose of the matter upon any of the many other grounds asserted by the plaintiff, but was, as clearly appears from all that was said and done by the trial court, because of that which was presented as a separate ground for such relief, namely, the argument of defendants’ counsel. The motion for rehearing is denied, with $25 costs.