Remmel v. Czaja

183 Wis. 503 | Wis. | 1924

Eschweiler, J.

Upon a review of the record from the civil court, the circuit judge, by written decision, expressed the opinion that substantial justice had not been done in the case, and as grounds for such conclusion and as the prejudicial errors causing such result mentioned the following:

1. References by plaintiff’s counsel to an insurance company.

2. The admission in evidence of statements made by the driver of defendant’s truck some time after the accident.

3. Remarks by' plaintiff’s counsel as to alleged misconduct of defendant’s driver in talking during an intermission with certain of the jury trying said cause.

4. That leading questions, many of them containing conclusions, were permitted to be asked during the trial.

Plaintiff’s counsel unnecessarily, improperly, and repeatedly, by his questions to defendant’s driver and another witness, referred to there being some insurance company, not a party to this action, liable over for the payment of any damages that the plaintiff might recover against the defendant here. This had no proper place in the trial of this action, and such practice has been condemned. Smith v. Yellow Cab Co. 173 Wis. 33, 180 N. W. 125. Defendant’s counsel, however, did not interpose objections to that line of questions by plaintiff’s counsel to defendant’s driver nor call fhe court’s attention thereto at the time nor. subsequently .by request to charge the jury with reference to the matter. Wljep, proper objection was later interposed to a similar qriestipn asked of another witness the trial court promptly such objection.

The record discloses a number of leading and suggestive questions asked by plaintiff’s counsel, but it also discloses, however, that proper objections were not interposed in order to have them stopped. It also appears that defendant’s counsel in his turn asked leading questions of defendant’s witnesses. Wherever objections were interposed to such as leading, the objections' were promptly and properly sustained.

. The accident occurred before noon. Plaintiff was permitted to testify as to statements tending to show-admissions of liability made to him by defendant’s driver at an interview the afternoon of the same day. Here, again, there were -no proper objections so that the trial court might rule upon the same. Furthermore, there was other evidence which was properly received and enough to support the verdict of the jury on the questions as. to the negligence of defendant’s driver.

We are also convinced that the trial court properly disposed of the incident concerning remarks made by defendant’s driver in the hearing of the jury.

An examination of the entire record discloses a situation which warrants an ultimate judgment in plaintiff’s favor.

That being so, we are constrained to hold that the errors complained of are not sufficient to warrant a new trial of this action.

By the Court. — Order reversed, a Cause remanded with directions to affirm the judgment of the civil court.