185 Wis. 593 | Wis. | 1925
The contempt proceedings were brought under ch. 295, Stats., entitled “Contempts in civil actions,” on the ground that plaintiff had been guilty of misconduct during the trial which was calculated to defeat, impede, or prejudice the rights and (or) remedies of the defendant herein, in the following respects:
“(1) That said plaintiff did, during the progress of the trial of this case and during one of the recesses of court, discuss with a third person, in the presence of said juror Gleich, the amount of fees received by the Mayo Brothers for surgical operations.
“(2) That said plaintiff did subsequently, during the trial of this case and at the noon recess of said court, approach said juror Gleich and invited said juror to lunch with him.”
While the proceeding is denominated a civil contempt and
Was the court, in the exercise of a sound judicial discretion, warranted in setting aside the verdict of the jury in this case by reason of the misconduct of the plaintiff? A careful reading of the record both upon the motion for a new trial and of the contempt proceeding leaves us with a distinct impression that there was in fact no attempt on the part of the plaintiff or his attorney or any one else to influence the juror in question or in any way to impede the administration of justice. It was only by the most skilful examination that the juror was finally led to' say that an invitation to lunch had been extended to him by some one, and it is quite clear from his testimony that the only reason he supposed it was extended was that some one had said: “He is a juror; you cannot take him to dinner.” It appears that Dr. Oakland had known the juror Gleich some twenty years previously, at the time when he was employed in a bakery shop conducted by a Mrs. Ehrler, Mr. Ehrler being a
In Basile v. Fath, post, p. 646, 201 N. W. 247, it was held that counsel cannot sit by while matters, possibly prejudicial to the interests of their client occur, wait until after an unfavorable verdict is returned, and then take advantage of the same for the purpose of setting the verdict aside. In addition to the cases cited in the Basile Case, see Jackson v. Smith, 21 Wis. 26; Grottkau v. State, 70 Wis. 462, 36 N. W. 31.
If the defendant felt that the occurrence complained of was prejudicial to his rights, it was his duty to have the same brought immediately to the attention of the court. To take advantage of the verdict if it is in his favor and to attack its efficacy if it is against him is to attempt to speculate for his own benefit upon the outcome of the proceedings. Where misconduct or improprieties are brought to the attention of counsel during the course of the trial, it is the duty of counsel to immediately present the matter to the court if it is deemed to be in any way prejudicial. The affidavit made on the motion for a new trial did not disclose at what time
The order setting aside the verdict and granting a new trial is reversed, with directions to enter judgment for the plaintiff upon the verdict. On the appeal from the order denying costs in the contempt proceedings, the order should be affirmed.
By the Court. — It is so ordered.