*1 298
ELMER SWANSON WALDO v. SWANSON.1 31,
January 1936. 30,531. No. Farrish, appellant. for W. Schmitt Clim'lotte E. L. & J. Began, respondent. E. for John Justice. Stone, in- personal to recover against brother by brother
Action a had an automobile collision. resulting Plaintiff. juries denying his alternative from the order appeals Defendant verdict. trial. or a new notwithstanding judgment motion for 1Reported in W. 39. 265 N. De- 29, 3:30 m. December 1933. p. accident occurred about high- on a Plymouth coupé westerly paved driving
fendant was his due lay The road with nine-foot shoulders. way 20 feet width a rail- the south closely east and west and was flanked on side *2 right on the extreme sitting road. Plaintiff an invited guest was sat driving, of him was defendant, the one seat. Between and who both brothers noticed latter’s wife. Just the collision before car, Ap- another driven from the west. Kroschel, coming one proaching from the same and at about the same distance direction on the railroad a train. Both automobiles at traveling was were about 40 per being miles hour. Some smoke and steam was wind- driven from the locomotive over At it did highway. first not obscure the Kroschel car. But a moment later there came a blast of steam of such volume and it density completely that obscured that vehicle from the view of those in defendant’s machine. De- fendant drove on into the cloud thinking up. it would clear It did so momentarily, giving defendant a of glimpse the Kroschel car a short distance ahead. what in Immediately, the evidence is some- times referred to as the second blast of steam smoke came over the highway, and the collision occurred. It was of such violence as to stop both cars almost and instantaneously, each throAvn was to its side of the highway. They came to rest if almost, quite, facing other, each with their front Avheelson and their rear off the pavement. complaint
The Avasnot draAvn on theory that defendant Avas liable because he had off negligently gotten his OAvn of side and road over the center line to the south. No mention of such part negligence action is made as of the charged. specific The most that, is vision allegation completely defendant’s cut he off, “negli- to gently high continued travel at a and dangerous speed rate of smoke,” thereby said steam and causing the collision. stop failure to Avas if not almost, quite,
Defendant’s withdrawn an jury by from the instruction that: “You cannot find that stopped defendant could have his car before the accident occurred entered first gust and after he steam under the facts appear- ing eAndence.” What is called “the second gust of steam” came that the action was continuous necessarily thereafter suddenly
so It would be difficult to find on evidence so. very rapidly stop not to or check his before de- negligent speed if it were that, of steam, charged the first cloud he could be with entered fendant he did not or check his stop speed alone because before negligence fog. obscurity The was almost continuous the second entering momentary of a to him only enough letup give glimpse the one with all that had car, getting Kroschel is he after once of the into the cloud. given, general terms, statutory rule as half traveled duty “upon right por-
defendant’s to drive of the impracticable tion unless it is to travel on such highway, instruction that if was not suffi- side.” There was also an “there to avoid the accident or to the defendant’s car be- stop cient time then crash, involuntarily fore the and the defendant drove his car left of line so that a thereof AvassomeAvhatto the the center * * * your then verdict must be for the de- highway, *3 quoted of deal- already portion charge fendant.” We have quoted with defendant’s failure to The instruction last ing stop. prevented jury finding against Avassuch that it should have from convinced that they voluntarily defendant unless Avere he drove left of the center line. The trouble there is that our search any syllable justifying fails to disclose of testimony record voluntarily the conclusion that defendant drove to the left of the just center line. There is evidence that before indicating the col- may traveling lision his left Avlieels have been over that line. But, (of his vision was, entirely as he obscured that the evidence leaves doubt) more would be needed to something no establish the element of volition demanded by charge. may It be that on charge Avastoo favorable point this to defendant. But it was Iuav of jury. the case for the
In that status of the case we come to another factor, requires of which Aveight added a neAVtrial. Plaintiff im was an A witness his oaaoül behalf. Avritten portant statement had been him as as procured speedily possible by Miss Farrish, of coun It for defendant. Avasonce amended at plaintiff’s request. sel He given copies original was and amended statements. promptly they beyond It at the trial that were speedily appeared legitimate origin. They both as to substance and and criticism, carefully were honestly procured plaintiff and were true unless himself was guilty Notwithstanding that, per- of falsehood. all counsel for plaintiff in questioning sisted the documents and the manner of their pro- far trial curement. He went so that had to tell the jury that he all and that should wrong they disregard his efforts to besmirch procured by the statements Miss Farrish. such writings dishonestly procured
Some are or fraudulently garbled who by the one takes and transcribes them. diligence But duty requires performance frequently that a lawyer, charged with either prosecution defense of such a case as this, procure prospective statements from witnesses promptly may as as be. They are not to be criticized for doing. They so would be subject to criticism for doing otherwise. There about memory is of some Avitnessesa kaleidoscopic manipulable quality against which it is often impossible enough to take If precaution. the work is honestly done, it deserves nothing but commendation. We cannot tacitly condone or otherwise the action of counsel Avho,after it ap- pears that the statement of a witness has been truly taken Avith fairness, persistently endeavors to make a believe that there yet something is reprehensible clinging to it. Such procedure is misconduct.
True, under 3 Mason Minn.
Supp.
St. 1934
5687-8, “any
§
injured
statement secured from
any
an
at
person
time within 30
injuries
after such
were sustained shall
days
presumably
be
fraud
any
for use
the trial of
action for
damages
injuries
ulent
or for
person
sustained
such
the death of such
person.”
disappears completely
so created
and for
presumption
the Avhole
immediately evidence demonstrates that
nothing
case
there is
fraud
*4
in question.
document
v.
Cosgrove McGonagle,
ulent about the
completeness
Minn.
counsel but also in his treatment of a similar plaintiff from procured ment trial from witness Kaeliler. There also the procured statement jury any to based disregard argument instructed the judge properly leaving to writing, fraudulent character of the upon supposed the question diagram preparation as to whether a only them improperly had assisted had been omitted as of which Kaeliler of the statement. 'yield misconduct to decision question on a we
Ordinarily In cannot way. case, however, trial either this we on the already indicated, unusually do so. As the case is close fact that defendant insured was Furthermore, merits. With such a added element of setup, persistence well disclosed. demonstrably plaintiff’s questioning counsel the character of and his complete procured plaintiff, honest and statements same toward substantial of a similar state- portion attitude ment been procured Kaeliler, from witness was shown to have a case which are constrained to hold honestly procured, make we requires a new trial.
The order under review is reversed.
Hilton, (dissenting). Justice
I prevailing opinion dissent. The concedes that on the merits evidence, then, was a “close one.” On the might case plaintiff returned a verdict either the defendant, have upheld by would have been court. A and such verdict this reading beyond establishes doubt that both plaintiff’s of the record counsel frequently counsel were “off side” and indulged and defendant’s colloquy. However, because of plain the misconduct of improper a new trial is ordered. As whether tiff’s counsel a new trial of misconduct wholly result because is almost discretionary should v. 147 Hass, the trial court. State Minn. N. 269, 94; with 180 W. 241 Wendt, 461, 185 Minn. N. W. Marckel 581; Kenn v. Co. v. 242 N. 125, 471; Purity 186 Minn. W. Olson v. Raven, Baking Co. 242 N. I 571, Minn. W. 283. Here think there was no abuse of trial court heard testimony, that discretion. The actually ob- *5 Be- jury. if effect, any, its on misconduct and noted served than is this position it was a much more'favorable thereof, cause whether only it, cold record before has court, as to prejudicial for one was so party of counsel the misconduct say that trial. In instant case Aveshould require a new party. to either substantial resulted prejudice I. M. Olsen, Justice (dissenting).
I in Mr. concur Justice Hilton’s dissent. no consideration took
Dbvaney, Chief Justice, decision of this case.
CITY OF STAPLES v. & LIGHT MINNESOTA POWER
COMPANY.1
January 31, 1936.
30,544.
No.
1Reported in