Oshogay v. Schultz

43 N.W.2d 485, 257 Wis. 323, 1950 Wisc. LEXIS 254

• Court: Wisconsin Supreme Court
• Decided: June 30, 1950
• Status: Published

Opinions

Gehl, J.

Defendants assign several errors, the first of which is the claim that the court erred in its instructions with respect to the degree of care required to be exercised by the defendant Allen. We need not discuss this contention because we are convinced that he was guilty of negligence as a matter of law and should have been so found. Certainly, one is guilty of negligence as a matter of law who fires a revolver with as little effort to control the course of the bullet as defendant Allen exercised in a relatively small room occupied by ten or fifteen people. Allen’s act under the circumstances indicates a recklessness and a disregard for the safety and security of his patrons. It is not as though plaintiff’s conduct had been such as to put him in fear of his life and to justify his use of a pistol. If there was error in the instruction it was not prejudicial.

Defendants contend that the court erred in refusing to incorporate in the special verdict a question as to the contributory negligence of plaintiff; there was nothing in the testimony which would support a finding of contributory negligence. They contend also that a question should have been submitted as to whether the injury to plaintiff resulted from an accidental or unintentional act; having determined that defendant Allen should have'been found guilty of negligence as a matter of law this issue was not in the case. As to the defense of defendant's self and his property and as to provocation by the plaintiff with respect to each of which the defendants argue a question should have been submitted to the jury, the answer is that these defenses are not available in a negligence action such as was pleaded here and upon which theory the case was tried. There was no factual situation which would warrant the submission of the question to the jury of whether the conduct of plaintiff constituted such provocation or negligent conduct on his part as to excuse or justify the discharge of the weapon by the defendant Allen.

There was no testimony which would support a finding of contributory negligence. Nor was there any pointing to an accidental or unintentional act on the part of defendant Allen. He did not, it is true, intend to shoot the plaintiff, but he did intend to fire the gun; the sole question was whether such act constituted negligence. In fact, there was no issue as to what Allen’s intention was. The other defenses offered are not available in a negligence action.

To understand fully defendants’ final assignment it is necessary to set out in some detail the colloquy between counsel and the court. Upon his direct examination defendant Allen was questioned as to his military service. An objection thereto was sustained. He was then questioned as to his discharge from the armed forces, whereupon the court remarked, “Well, let’s not go into detail.” He was asked whether he had received a citation in the military service. An objection was sustained and the court said, “Get down to what happened on the night of the 18th.” Counsel then sought to obtain information from the witness as to his having contracted malaria during his service. Objection was made and the court again said, “Let’s find out what happened on the 18th.”

The following then took place:

“Q. You say that you contracted malaria while you were were in the service? A. That’s right.

“Q. Have you been bothered with it since, from time to time? A. Yes, I was getting an attack every two weeks while I was—

“Q. (interrupting.) In what part of the world was the 33d division operating?

“The Court: Now, Mr. O’Brien, I’m not going to allow you to go any further.

“Mr. O’Brien: Well, malaria came from the South Pacific.

“Mr. Nesbitt: I can’t see the materiality of any of this.

“The Court: No, and you jurors are absolutely not performing your duty if you are going to allow anything of that character to influence you in any way in the affairs of this case. It has nothing to do with it. Now, proceed, Mr. O’Brien.

“Mr. O’Brien: May I suggest, Your Honor, that in the matter of handling a gun, his military service and experience is important here ?

“The Court: I don’t think it’s got one thing to do with it.

“Q. During the time that you were in service, were you in combat service? A. Yes, I was.

“The Court: Now, wait a minute, Mr. O’Brien; we’re either going to try this case or we’re going to quit. Now, one way or the other.

“Mr. O’Brien: My point is, Your Honor — now, I want to be fair,—

“The Court: You don’t want to be fair with me.

“Mr. O’Brien: I want to be absolutely fair.”

Defendants contend that the court’s remarks were prejudicial. On the issues in this case none of the testimony offered was material. The court might have been somewhat more guarded in its remarks, but defendants’ counsel invited it. He persisted in his effort to bring into the case matters which had no place in the record. What was said by the court in Hein v. Mildebrandt, 134 Wis. 582, 589, 115 N. W. 121, is applicable here:

“. . . it [is] clear that there was no prejudicial error in the language used under the circumstances, but on the contrary that the purpose of the court was to confine counsel within proper limits and to prevent him from persistently endeavoring to draw out evidence from the witness after rulings of the court that the same was improper.”

There was no reversible error committed.

By the Court. — Judgment affirmed.