Coon v. Metzler

154 N.W. 377, 161 Wis. 328, 1915 Wisc. LEXIS 208

• Court: Wisconsin Supreme Court
• Decided: October 5, 1915
• Status: Published

Opinions

Winslow, C. J.

The plaintiff’s evidence may not be true; it is certainly to be hoped that it is not true. It is not incredible, however, and, for the purpose of the motion for nonsuit, must be treated as true. In brief, the case made by the plaintiff is this: An innocent man, found in a somewhat compromising situation with a married woman, is repeatedly threatened by the district attorney of the county with prosecution and conviction of adultery, and under the stress of such threats gives his note for $800 to settle the matter and at once goes to a distant state, procures the money to pay the note, and remits it to the defendant within twenty days, without advising with counsel and because he believes the prosecution will proceed if he does not do so.

It certainly would be a reproach to the law if such things can be done with impunity. The law is neither so weak nor so unjust as this.

Duress is a relative rather than a positive term. Much depends on the situation of the parties, their relations to each other, physical and mental strength, and all the surrounding circumstances. Acts which might fall far short of duress-under certain conditions might be ample under other conditions. The threat of an enraged boy to commence a criminal prosecution might be unworthy of notice; the same threat by a man of experience in the world might well cause anxiety; while the same threat by the state’s official prosecutor could hardly fail to cause deep solicitude if not actual terror. It is apparent also that a threat which would have no serious effect on a strong, experienced business man would be terrifying in the extreme to a nervous or weak person with little or no experience in the world. There are no arbitrary and unbending rules which can be applied in every case to determine the question. True, the person claiming duress must he so strongly influenced that his acts are not the result of his own will, but the threats which would accomplish that result in one case might be entirely insufficient in another.

It was correctly said in Galusha v. Sherman, 105 Wis. 263, 278, 81 N. W. 495:

“There is no legal standard of resistance which a party so-circumstanced must exercise at his peril to protect himself. The question in each case is, Was the alleged injured person, by being put in fear by the other party to the transaction for the purpose of obtaining an advantage over him, deprived of the free exercise of his will power, a^d was such advantage thereby obtained?”

Much reliance is placed by respondent upon the fact that the plaintiff went to another state, where he could advise with attorneys if he chose, and remained there two or three weeks before paying the note. During this time there was no Communication between plaintiff and defendant, and it is said tbat under sucb circumstances there could be no duress as a matter of law. The cases of Wolff v. Bluhm, 95 Wis. 257, 70 N. W. 73; Rochester M. T. Works v. Weiss, 108 Wis. 545, 84 N. W. 866; and Bennett v. Luby, 112 Wis. 118, 88 N. W. 37, are relied on to support this contention.

It is true tbat in eacb of these cases it was held tbat no duress was shown and tbat in eacb case the fact tbat several days elapsed between the making of the threats and the payment of the money was considered as an important consideration in reaching the result. This is far from saying, however, tbat sucb a fact will in all cases negative duress, and such a bolding would manifestly be illogical. The ultimate test after all is the condition of mind produced by the threats and existing at the time of the payment. It may well be tbat the lapse of a year or more without renewal of the threats (as in the case of Schultz v. Culbertson, 46 Wis. 313, 1 N. W. 19) between the giving of the note and its payment should be held to be conclusive against any claim of duress in the payment, but in the last named case it was wisely said that “perhaps a jury would be warranted in finding that the original duress continued” had the note been paid soon after it was given.

The case before us is quite out of the ordinary in the fact that the threats of prosecution and conviction were made, if made at all, by the law officer of the state whose duty it is to prosecute criminal offenses. Threats of prosecution made by the state’s attorney differ materially from similar threats made by a layman or private attorney in that they bear the added weight of the power vested in that officer to institute, and to a certain extent control, criminal prosecutions; a power which is often exaggerated in the mind of the layman. It is very easy to understand that such a man as the plaintiff might have his free will absolutely coerced by a district attorney’s threat of prosecution, and it is easy to see also how tbe influence of sucb a threat might remain for two or three weeks and while the coerced party was actually in a foreign state, for the functions of requisition proceedings are very generally understood and the district attorney’s power over such proceedings thought to be plenary. In view of these exceptional circumstances we think the case should have gone to the jury, and we do not consider that this holding in any way overrules the cases previously cited herein and relied on by the respondent as justifying the nonsuit.

We cannot close this opinion without remarking on the inadvisability, almost amounting to impropriety, of the district attorney acting as attorney to recover civil damages arising from a supposed criminal act.

In such matters the prosecuting attorney of the state cannot serve two masters. Justice is his sole client, and any private retainer which in any way tends to sway his judgment or distort his vision as to the character of the act should be sedulously avoided.

The distinction between civil and criminal liability is apt to be much confused in the lay mind, as well as the distinction between an attorney’s acts in his capacity as a public prosecutor of crime and his acts as a private attorney. The code of ethics of the district attorney in all such matters cannot too closely follow the ethics of the bench; indeed, his duties are gwasi-judicial in their nature.

As said in the beginning, it is to be hoped that the plaintiff’s story is not true, and that the district attorney will be able to show that he has not been guilty of the indefensible conduct charged. When such charges are afloat he should welcome the opportunity to meet and crush them. He will have that opportunity now.

By the Court. — Judgment reversed, and action remanded for a new trial.