McNamara v. McNamara

84 N.W. 901, 108 Wis. 613, 1901 Wisc. LEXIS 167

• Court: Wisconsin Supreme Court
• Decided: January 8, 1901
• Status: Published

Opinion

BabdeeN, J.

The controversy herein is between son and father. Like most family disputes, there is an express affirmation of fact on the one side, and an equally positive denial on the other. Considerable of the bad feeling and bitterness of the parties was injected into the case. It came in through improper remarks of counsel, offers of incompetent testimony, and in matters of cross-examination foreign to the issue on trial; all of which had a tendency to inflame the minds of the jury and divert their attention from the actual controversy between the parties. The defendant was in his seventy-ninth year. His former wife was dead. A few years prior to the trial he married again. In opening the case to the jury, plaintiff’s counsel said: “This new relation has hardly taken place until the temperature of the frigid zone came into the house.” Again, referring to a demand made by the plaintiff upon his father for pay, he quotes the father as saying: “My son will not get one dollar for what he has done, and to avoid paying my son one dollar I will deed every foot of my property I have to my wife, so that if my son doés get a judgment he can keep it. He won’t be able to collect it.” Upon objection by defendant, the court dismissed the matter by reminding plaintiff’s counsel, that he was “moving on very dangerous ground.” Such language alone might not be sufficiently prejudicial to reverse a case, but, when coupled with other matters hereinafter to be mentioned, it. served to create prejudice in the minds of the jury towards defendant. On the trial the counsel asked defendant whether he had not lost all affection for his first wife’s children, and whether it was a matter of any concern to him if his invalid daughter was in want or suffering,— matters that were irrelevant to the issue, but having a tendency to create a bad impression against the defendant, although ruled out. Again, on cross-examination of defendant, plaintiff’s counsel produced a deed, and sought to ascertain whether he had not, within a short time after the son had demanded a settlement, deeded a long list of property to his wife. At another time he was asked if, on the day he received a letter from the attorney then representing plaintiff, he did not go and make a transfer of his property. In the parley before the jury, counsel stated to the court that such evidence might have some bearing if a man was in the habit of covering up his property. The court promptly ruled out the questions, but he could not strike from the mind of the jury the bad impressions against the defendant. The earnestness of counsel and the partisan feeling engendered on the trial sometimes leads counsel to do things which their sober judgment will after-wards condemn. Many of the questions referred to were not proper as cross-examination, and much of the testimony sought to be elicited was incompetent and immaterial. It had a direct tendency to inflame the minds of the jury and create a prejudice against the defendant. We have mentioned these matters as furnishing some ground for saying that the verdict in this case does not represent that fair and impartial consideration which should characterize the decision of disputed questions of fact. Scripps v. Reilly, 38 Mich. 10.

Upon the main question in the case, of whether there was an employment and a promise to pay, the parties were directly in dispute. Both were involved in contradictions and had made inconsistent statements. The jury were at liberty to believe whichever they chose. There was some evidence to support the conclusion reached, and, independent of other considerations, we should not be disposed to set aside their conclusion. Upon the question of the' value of plaintiff’s services, the jury seems to have gone widely astray. The plaintiff kept no books of account. During ail the years he claims to have been in his father’s employment he never made a memorandum of a single case he treated, or concerning which he counseled or advised his father. His guess was that his father called upon him on the average of four times a week, and that he counseled with him as to, four cases at each visit. His estimate was that he advised with his father concerning 1,000 cases each year, and that his services were worth a little less than $2 for each case. He was unable to state what he did in any given case, and had no memorandum or record from which he could determine the number of cases in any one week or month he acted as counsel in. Nor did he have any data or remembrance as to how much time he spent in his father’s service. Three physicians were called as experts for the plaintiff, who testified as to the value of his services. Neither one was put in possession of the actual facts in the case, but they were asked a hypothetical question similar to the following: “ Q. Doctor, if the defendant in this case consulted with the plaintiff in a professional capacity on an average four times a week, and at each consultation discussed four patients- on an average, or say sixteen to eighteen eases a week, and in that consultation the plaintiff would prescribe for the different parties, give advice as to the medicine to be given, bow given, and the general treatment, and all such other advice and information as is incident to a consultation for treatment, those cases being of a syphilitic nature and venereal character entirely, or ninety per cent, of them at least, what, in your opinion, would such services be worth per year? ” Dr. Yiolet answered that such services would be worth in the neighborhood of $4,000 per year. He admitted that he had never had any experience in a like situation, but was testifying according to the fee bill fixing rates for consultation. Dr. Carlson had never heard of such an arrangement before, but he would charge $4,160 per year for such services. Dr. Hayes thought from $2 to $5 a consultation would be a reasonable charge. That such testimony was of no value in arriving at a correct conclusion is evident from the fact the hypothetical question did not cover the material facts in the case. The relation of the parties, the circumstances under which the services were rendered, the time employed, the nature and extent of the consultation, and all the circumstances surrounding the service were material in arriving at a reasonable answer. The attempt to apply fee-bill charges to such a situation was absurd, and the trial court evidently thought so when he cut $5,000 from the verdict.

When we come to consider the nature of this testimony in connection with the other matters herein referred to, we cannot resist the impression that the verdict does not represent that calm, fair, and impartial consideration necessary ■in judicial proceedings. In other words, that it was perverse in the sense that prejudice was aroused against the defendant and that no proper foundation for the recovery allowed is found in the evidence. It is true the trial court cut the verdict, and reduced the recovery to $6,000. That the court had such power is now the settled doctrine in this state. Corcoran v. Harran, 55 Wis. 120; Gillen v. M., St. P. & S. S. M. R. Co. 91 Wis. 633; Donovan v. C. & N. W. R. Co. 93 Wis. 373; Taylor v. C. & N. W. R. Co. 103 Wis. 27; Baxter v. C. & N. W. R. Co. 104 Wis. 307. Where it appears with reasonable certainty that the recovery is so excessive as to create the belief that the jury have been misled by “ passion, prejudice, or ignorance,” the trial court may either grant a new trial absolutely, or give the plaintiff the option to remit the improper excess. But the rule is only applicable in cases where it is clear that the perverse conditions mentioned only affected the amount of the recovery. If it appears that the elements of passion and prejudice may have entered into, and probably did affect, the decision of other questions in the case, the court’s duty is to grant a new trial absolutely. Such we believe to be the situation in -this case. The evidence shows that the parties are greatly embittered towards each other. The evidence tending to the corroboration of the one or the other is of a vague and shadowy character. The cause of action and the defense depends very largely upon the testimon3r of the respective parties. The introduction of extraneous or immaterial matters tending to the prejudice of the one or the other might turn the scale either way. Justice demands that the case should be calmly tried and the jury permitted to reach a conclusion upon legitimate and competent evidence alone.

By the Court.— The judgment of the superior court of Milwaukee county is reversed, and the cause is remanded for a new trial.