44 Wis. 282 | Wis. | 1878
The court would be wanting in self-respect, to decide this appeal without some word of censure for an indecency committed on the trial. During his examination as a witness, the respondent was permitted, without apparent objection of court or counsel, to uncover and exhibit to the jury his organs of generation. No such indecency is ever necessary, or should be tolerated in court. If the condition of any private part of the body of any party, male or female, is material on any trial, it should be privately examined by experts out of court, and expert testimony be given of it. Such an exposure as was made in this case, if made without leave of the court, might well be punished as a contempt; made with the sanction of the court, it is none the less improper and indecent, well calculated to disgrace the administration of justice, and to bring it into ridicule, if not into contempt. It is hoped that this court may never have another occasion for such censure.
I. A very able and solemn appeal was made to the court, to exclude the rule of exemplary damages in actions of tort, when the tort is punishable as a crime. The position was founded upon the clause in sec. 8, art. II of the constitution,
On this subject the writer adheres to what he said in Bass v. Railway Co., 42 Wis., 672, confirmed by comments which he has seen upon it in legal periodicals. And he believes that his views of punitory damages, as an original question, are sanctioned by every present member of the court.
The particular view of the rule now insisted on was overlooked in McWilliams v. Bragg, Birchard v. Booth, and all the cases in this court in which the action was against the actual tortfeasor, subject to criminal conviction for the act. In Railroad Co. v. Finney, 10 Wis., 388; Bass v. Railway Co., 36 id., 450, S. C., 42 id., 654; Craker v. Railway Co., 36 id., 657, and other cases where the action was against the master for the tort of the servant, it could not well arise. So far, therefore, it is a question of first impression here; and the court congratulates itself that it arises first in a case thoroughly discussed by able counsel on both sides.
It would have been no subject of regret to the court, if the
The radical difficulty in the position of counsel appears to be, that judgment for the criminal offense is for the offense
And so the constitutional provision works no exception to the rule of exemplary damages, although it adds great force to the weight of argument against the soundness of the rule generally.
A different view appears to prevail elsewhere. Fay v. Parker, 53 N. H., 342. This is certainly, as an editor of Professor Greenleaf’s work remarks, a very elaborate and able discussion of the subject; it is a very elaborate arid able criticism of the cases sustaining the rule of punitory damages, and argument against the rule in any case. To the same effect are Taber v. Hutson, 5 Ind., 322; Butler v. Mercer, 14 id., 479; Nossaman v. Rickert, 18 id., 350; Humphries v. Johnson, 20 id., 190; Austin v. Wilson, 4 Cush., 275. But these cases fail to satisfy this court that it is wrong in the construction here given to the constitutional provision in question. And Chiles v. Drake, 2 Metc. (Ky.), 146, and Hendrickson v. Kingsbury, 21 Iowa, 379, well considered cases, in very satis
Tbe argument and consideration of tbis case bave gone to confirm tbe present members of this court in their disapprobation of tbe rule of exemplary damages which they bave inherited. But they fear to complicate tbe difficulties and incongruities of tbe rule by tbe exception urged; and do not feel at liberty to change or modify tbe rule at so late a day, against tbe general current of. authority elsewhere.- As suggested in Bass v. Railway Co., if a change should now be made, it lies with the legislature, rather than tbe court, to abrogate or modify a rule running through tbe entire body of tbe reports of this state. As was once well observed, courts cannot be always inquiring into the original justice or wisdom of rules long established and accepted.
After all, the distinction between compensatory damages for wounded feeling, sense of insult, etc., and punitory damages, is sometimes very vague, as may be seen by comparison of Wilson v. Young, 31 Wis., 574, and Craker v. Railway Co., 36 id., 657. And the vagueness of this distinction, in practice as well as in theory, is illustrated by the three reports of Bass v. Railway Co., 36 Wis., 450; 39 id., 636; 42 id., 654. The case was three times tried, in different counties; twice upon instructions allowing exemplary damages, and once upon instructions disallowing them. And yet the verdict on each trial was for the same sum. Apparently, what was allowed on two trials for exemplary damages, was allowed on the third trial for compensatory damages for wounded feelings, etc.
The charge of the court below in this case, on the subject of exemplary damages, was correct, as far as it goes; though it can hardly be held sufficiently explicit in such a case, in view of some of the evidence appearing in the bill of exceptions. In Moreley v. Dunbar, 24 Wis., 183, it was held, that provocation of an assault, although not sufficient for justifi
II. Following for once a bad practice, the learned counsel for the respondent, in closing the argument of the case to the jury, forgot himself so far as to exceed the limits of professional freedom of discussion.
It appears by the bill of exceptions, that he waived the opening argument to the jury. A very strict rule might hold this to give the other side the right to close. If such a waiver should still leave the closing argument to the plaintiff, it certainly confined it to a strict reply to the defendant’s argument, excluding general discussion of the case. The sole object of all argument is the elucidation of the truth, greatly aided in matters of fact, as well as in matters of law, by full and fair forensic discussion. And this is always imperiled when either party, by any practice, is able to present his views of the case to the jury without opportunity of the other to comment on them. And if the party entitled to the opening ai-gunaent, relying on the strength of his case without discussion, waive the right to open, he waives the right to discuss the case generally, and should not be permitted to do so out of his order, and after the mouth of the other party is closed. His close, if permitted to close the argument, should be limited.‘to comments on the argument of the other side. This is essential
It sufficiently appears in the present case, that the learned ‘counsel for the plaintiff did not properly confine his closing argument to a reply. It is very doubtful if that alone would be error sufficient to reverse the judgment, if an exception had been taken by the appellant, which does not appear to be the case. But the learned counsel went beyond the legitimate scope of all argument, by stating and commenting on facts not in evidence. .
In actions of tort, calling for exemplary damages, evidence of the pecuniary ability7- of the defendant to pay them is admissible. Birchard v. Booth, supra; Barnes v. Martin, 15 Wis., 240. This appears to be, as Mr. Justice Cole remarks in Birchard v. Booth, a fair corollary of the rule of exemplary damagsi?.. Perhaps the corollary is not better founded in principle than the rule; but the court takes them as it finds them established.
• It appeared in evidence, that the appellant was an officer of a railroad company, and that the locus vn quo was within depot grounds of the company. No evidence appears to have been given of the ability of the appellant to pay exemplary damages. The learned counsel appears to have undertaken to supply this want of evidence, by commenting to the jury upon the appellant’s connection -with the railroad company, and the wealth and power of the company as a great corporation,-and the defendant’s ability, from his connection with it, to pay any judgment which might be rendered against him. The bill of exceptions states, that “ no record was kept of these remarks, and the court is unable to state more specifically the substance of the language used.” But enough appears to show, not only that the learned counsel commented on facts not in evidence, but in effect testified to the facts himself. It was in effect telling the jury that the appellant’s position with ’the corporation gave him the ability to pay large damages,
Amongst other evidence of the appellant’s ability to pay, it might undoubtedly have been shown that he received large emoluments from his position in the railroad company; and possibly that the railroad company had assumed the appellant’s tort and the payment of the judgment. And it was not the duty or the right of counsel, was not within the proper scope of professional discussion, to assume the facts as proven, or to state them to the jury as existing; founding his argument pro tanto upon them. And this was the more marked in the present case, because it was made for the first time in what should have been a mere reply; and still more, because the court below had already admonished counsel to confine himself to the evidence, and not to go outside of the record.
The appellant took his exceptions; and his counsel now supports it by numerous cases, some of which are — as far as they go — admirable discussions of professional ethics; and all of which are well worth the attention of the bar. All of them support the rule now adopted by this court, that it is error sufficient to reverse a judgment, for counsel, against objection, to state facts pertinent to the issue and not in evidence, or to assume argxiendo 'such facts to be in the case when they are not. Some of the cases go further, and reverse judgments for imputation by Counsel of facts not pertinent to the issue, but calculated to prejudice the case. Tucker v. Henniker, 41 N. H., 317; State v. Smith, 75 N. C., 306; Ferguson v. State, 49 Ind., 33; Hennies v. Vogel, Sup. Court Ill., 7 Cent. L. J., 18.
There are cases in conflict with those which support this rule. But, in the judgment of this court, the rule is supported by the weight of authority and by principle.
Doubtless the circuit court can, as it did in this case, charge the jury to disregard all statements of fact not in evidence. But it is not so certain that a jury will do so. Yerdicts are
. The profession of the law is instituted for the administration of justice. The duties of' the bench and bar differ in kind, not in purpose. The duty of both alike is to establish the truth and to apply the law to it. It is essential to the proper administration of justice,-frail and uncertain at the best, that all that can be said for each party, in the determination of fact and law, should be heard. Forensic' strife is but a method, and a mighty one, to ascertain the truth and the law governing the truth. It is the duty of counsel to make the most of the case which his client is able to give him; but counsel is out of his duty and his right, and outside of the 'principle and object of his profession, when he travels out of his client’s case and assumes to supply its deficiencies. Therefore is it that the nice sense of the profession regards with such distrust and aversion the'testimony of a lawyer in favor of his client. It is the duty and right of counsel to indulge in all fair argument in favor of the right of his client; but he is outside of his duty and his right when he appeals to prejudice irrelevant to the case. Properly, prejudice has no more sanction at the bar than bn the bench. But an advocate may 'make himself the alter ego of his client, and indulge in prejudice in his favor. He may evén share his client’s prejudices against his adversary, as far as they rest on the facts in his case. But he has neither-duty nor right to appeal to prejudices, just or unjust, against his adversary, dehors the very case he has to try. The very fullest freedom of speech within the duty of his profession should be accorded to counsel ;• but it is license, not freedom of speech, to travel out of the record,
It is with regret that the court is obliged to hold that both appear to have been done in this case. It was no fair inference for argument that, because the appellant was the servant of a wealthy railroad company, he himself was wealthy; or that the jury might take into consideration, in assessing damages, the power, wealth and influence of the corporation. Popular prejudice against great corporations is, perhaps, a sufficient difficulty in the way of the administration of justice, in cases in which such corporations themselves are parties; it is intolerable that it should be extended to their servants. For all that appears in this case, the appellant may be as poor as Job in his downfall. ITis wealth, if he had it, was legitimate subject of evidence, not legitimate subject of argument, without evidence. And his fortune or misfortune in being the servant of a corporation was legitimate ground for no appeal against him in a court of justice.
It is to the honor of the bar that this is the first time that this question has come before this court. Yet is it not to be ignored that the practice here condemned has sometimes been indulged in. And it is, perhaps, not to be regretted that the question has first come here in the case of an eminent member of the bar; a gentleman of high character, personal and professional, known to every member of this court; whose
By the Court.- — -The judgment is reversed, and the cause remanded to the court below for a new trial.