March 31, 1964 —
April 28, 1964.
APPEAL from a judgment of the circuit court for Milwaukee county: HARVEY L. NEELEN, Circuit Judge. Reversed and remanded.
For the appellants there was a brief by Eisenberg Kletzke, attorneys, and Edwin A. Star of counsel, all of Milwaukee, and oral argument by Sydney M. Eisenberg.
For the respondents there was a brief by Kivett Kasdorf, attorneys, and John M. Swietlik of counsel, all of Milwaukee, and oral argument by Mr. Swietlik.
The judgment below was in favor of the defendant Harold Peters and his insurer. The litigation arises out of an automobile accident in which a car driven by one of the plaintiffs, Charles Combs, was allegedly forced off the road by another vehicle and certain property damage to the Combs car resulted. In addition, personal injuries were sustained by the driver and three other occupants of the Combs car, all plaintiffs here.
The incident occurred on Saturday, December 3, 1960, at about 3:30 p. m. The plaintiffs were traveling north in the Combs auto on Highway 41. It was daylight, the weather was clear, and the road was dry. Highway 41 at the point in question is a boulevard with occasional cutoffs between the north and south roadways. Combs was traveling 40 to 45 miles per hour.
According to the plaintiffs, their car approached the cutoff located about two blocks south of College avenue, and a car which they claim was driven by the defendant was approaching the cutoff from the north and traveling south. It is alleged that at the cutoff the Peters auto suddenly, without stopping, turned to make a U turn. After passing through the cutoff onto the northbound traffic lane, Peters then crossed over into the lane of travel used by the Combs vehicle just as Combs reached a position even with the cutoff. Combs applied his brakes, blew his horn and was forced to run off the roadway into the ditch. He traveled for about 40 feet before he was able to pull back out of the ditch and onto the highway. There was no impact between the two vehicles.
The driver alleged to be Peters continued his turn, hesitated briefly and turned to look back; he then continued on toward College avenue, where he turned east. Combs then started a search for the other car. He stated that he found the car about thirty to forty-five minutes later. Combs further testified that he knew it was the same car from the color and description. The vehicle he found was a four-door 1956 Chevrolet, two-tone brown and white in color. This vehicle had a badge on the upper left corner of the rear license plate, and it was parked in the yard of the house where Peters was living. Combs lifted the hood and felt the exhaust manifold and the radiator. He stated that the engine was still so warm that it almost burned his hand.
The other passengers in the Combs car substantiated this testimony of Combs. They all identified the car as being the same one in the accident. They all testified that they recognized the driver's jacket and saw the driver stop as they came out of the ditch and when he turned to look back before proceeding.
A call was made for police to investigate the scene. The plaintiffs did not realize that they were beyond the jurisdiction of the Milwaukee city police department but were in fact in the jurisdiction of the city of Oak Creek police department. The first police officer on the scene was a Milwaukee city police officer operating a cycle which was identified by the designation Squad 844. The police officer was in fact Eugene Gascoigne, but the plaintiffs claim they were unable to identify him until three days after the trial was over.
This officer proceeded to 1134 West College Avenue, where Peters was living, and interrogated Peters there. Peters told this officer in substance (according to plaintiffs' Exhibit 7b, an accident report of the Oak Creek police department) that he had been driving on South Twenty-Seventh street at about the time of the accident. Highway 41 is South Twenty-Seventh street extended. Peters also told this officer that he recalled nothing about the accident in which the Combs vehicle was forced off the road. In an affidavit submitted in connection with the plaintiffs' motion for a new trial on grounds of newly discovered evidence, Gascoigne stated that, in his opinion, Peters was intoxicated at the time of this interview.
Howard Larson, an officer of the Oak Creek police department at the time of the accident, was dispatched to the scene after it was determined that the accident had in fact happened in the city of Oak Creek. Larson testified that he was denied entry to the house where Peters was living and, since he had no warrant, he left a card ordering Peters to report to the Oak Creek police department. Larson testified that Peters was charged with a violation of an Oak Creek city ordinance pertaining to failure to yield the right-of-way. On December 15, 1960, Peters stipulated to his guilt and paid a fine of $20. Peters did not appear before any judge or magistrate in connection with this charge.
Peters testified in substance that he stipulated to his guilt on the traffic charge because he did not wish to go to the expense of hiring an attorney, he did not fully understand the nature of the charge, and he did not wish to be bothered with the matter any further. As to his activities at about the time of the accident, Peters testified that he left his home and drove his 1956 four-door brown and cream colored Chevrolet from 1134 West College Avenue to the Shell station at Highway 41 and College avenue for minor repairs. He testified that he left the Shell station at around 3:10 or 3:15 p. m. From there he drove north three or four blocks to the Twin's Tap at the intersection of Ramsey street and Highway 41. He drank two small bottles of beer. He remained there five to twenty minutes and then drove east on Ramsey to Twentieth street and south on Twentieth to College avenue, then east back to his home on Thirteenth and College.
Peters also testified that he received the card to report to the Oak Creek police department on December 8, 1960, and that he did report there and the matter was put over to December 15, 1960. On neither visit to the Oak Creek police department did Peters have an attorney with him. He testified at the trial that he did not drive south of College avenue on Highway 41 on the day of the accident.
Larson testified that it was explained to Peters by the Oak Creek city attorney that Peters had the right to get an attorney and have the case adjourned to a later date. Peters replied that he would stipulate to his guilt and pay the fine.
The proceedings on the motions after verdict were held on August 1, 1963. There is a transcript of these proceedings in the record. An attorney for the plaintiffs, Sidney Eisenberg, submitted 10 affidavits at the hearing on these motions, but there were no counteraffidavits filed. The plaintiffs moved for a new trial on grounds of newly discovered evidence, and the facts concerning such motion will be stated in the opinion.
Attorney Waiter R. Nicolai gave his affidavit to the effect that one of the jurors in the case had told him that she had seen a cartoon, which is in the record as an attachment to the affidavit. The cartoon portrays the situation where two drivers have a minor accident and they both agree to forget about it, and then at some later date one driver is faced with a lawsuit for personal injuries alleged to have resulted from the accident, even though all had originally agreed that no one had been hurt.
Mr. Nicolai gave a second affidavit to the effect that after the verdict he was told by another member of the jury that she believed that the jury was of the opinion that the plaintiffs were obliged to prove their case "beyond a reasonable doubt." The plaintiffs Nancy Combs and Charles Combs gave affidavits in connection with the motions after verdict to the effect that an attorney for the defendants, John Swietlik, had informed the jurors that the plaintiffs had to prove their case "beyond a reasonable doubt." These alleged remarks of counsel are not preserved in the record. There is nothing in the record to indicate that the attorneys for the plaintiffs made any objection to the alleged remarks of Mr. Swietlik to the effect that the plaintiffs had to prove their case "beyond a reasonable doubt."
The plaintiffs also contend that the argument to the jury by defendants' counsel was improper and prejudicial. The facts regarding this point appear in the opinion.
The jury found by special verdict that the defendant Peters was not the operator of the vehicle that was alleged to have caused the Combs vehicle to run off the road.
Notwithstanding Mr. Dooley, we have great respect for the learned trial court but conclude that there was an abuse of discretion in refusing to order a new trial on the grounds of newly discovered evidence.
The five requirements for the granting of a new trial on the grounds of newly discovered evidence are set forth in Hoffman v. Buggs (1959), 6 Wis.2d 488, 491, 95 N.W.2d 237. See also Estate of Teasdale (1953), 264 Wis. 1, 4, 58 N.W.2d 404; Mickoleski v. Becker (1948), 252 Wis. 307, 311, 31 N.W.2d 508; Miller Saw-Trimmer Co. v. Cheshire (1922), 177 Wis. 354, 369, 189 N.W. 465.
These tests are:
(1) The evidence must have come to the moving party's knowledge after the trial.
(2) The moving party must not have been negligent in seeking to discover it.
(3) The evidence must be material to the issue.
(4) The testimony must not be merely cumulative to the testimony which was introduced at the trial.
(5) It must be reasonably probable that a different result would be reached on a new trial.
The appellants offered a number of affidavits to show that the identity of a Milwaukee police officer, Eugene Gascoigne, was not ascertainable until after the close of the trial. There were no contradictory affidavits submitted, but the trial court ruled that "there was not due diligence to locate the witness prior to the trial." In our opinion, this ruling is contrary to the record which has been made in this case.
In an affidavit, one of the appellants' attorneys averred that before trial he had made an unsuccessful effort to discover the identity of the officer of Squad 844. There was also an affidavit by Edmund Siarkiewicz, a lieutenant of the Oak Creek police department, who deposed that during the trial he "used every means available to him but was unable to trace the name of the officer who had driven Squad 844." Siarkiewicz also testified to the same effect at the trial. A captain of the Milwaukee police department, Alvin Krebs, now retired, also gave an affidavit which contained the following significant averments:
"That although he diligently searched for the name of the officer he was unable to find it nor were any of the men who were under his command; that he learned that the records which were kept as to the name of the driver of Squad 844 had been destroyed and that there was no possible way for him to determine the name of the officer of Squad 844 who was on duty on December 3, 1960."
In the transcript there is the testimony of Howard Larson, who at the time of the accident was a police officer for the Oak Creek police department. Larson testified that his attempt to locate the officer who was in Milwaukee Squad 844 was unsuccessful because there was no available record at the downtown traffic bureau or at the No. 2 district. Although Larson was subject to cross-examination, no effort was made to show that his search for the missing officer was either untimely or nondiligent.
In our opinion, the affidavits, coupled with the evidence adduced at the trial regarding the efforts made to locate the driver of Milwaukee Squad 844, were sufficient to meet the appellants' substantial burden of establishing their diligence. There was no evidence whatsoever offered to the contrary. We deem that it was an abuse of discretion to deny the motion since the absence of negligence in ascertaining the identity of the officer was fairly and affirmatively demonstrated.
Although the trial court's ruling rested solely on the grounds of an absence of diligence, we have examined the applicability of the other four requirements and find them established. It is clear that Gascoigne's identity was in fact not learned until after the trial. In his affidavit, Gascoigne makes the following averments relating to the defendant Harold Peters, all of which are highly germane and support the appellants' position:
"That he saw a car parked behind the house, which he recalls as being brown and white in color. That he felt the hood and radiator and they were both warm as though the car had been driven recently. . . . That affiant formed the opinion that the man was intoxicated because of the strong smell of alcohol on the man's breath, and other actions of the man. . . . That affiant did not arrest the man, since the accident reported to him happened in Oak Creek and was therefore out of Milwaukee police jurisdiction."
The affidavit of Gascoigne should be read in conjunction with Exhibit 7b. The latter is an accident report which attributes to the unidentified squad officer of "844 (MPD)" the statement that Peters had told him that he "had been driving on South 27th street."
Our reluctance to disturb the discretion of the trial court in the instant matter stems from the fact that we still subscribe to the statement which we made in Erickson v. Clifton (1953), 265 Wis. 236, 240, 61 N.W.2d 329:
". . . the granting or refusal of a new trial [because of newly discovered evidence] is an order discretionary with the trial court which will not be disturbed unless it is manifest that the discretion has been improperly exercised."
See also Toledo Scale Co. v. Colleran (1933), 212 Wis. 502, 504, 250 N.W. 377; Belt Line Realty Co. v. Dick (1930), 202 Wis. 608, 613, 233 N.W. 762; Weichman v. Kast (1914), 157 Wis. 316, 318, 147 N.W. 369.
As suggested in the Erickson Case, we believe that there is a wide berth which is properly given to trial courts under the label of "discretion." We do not share the historical distrust of judicial discretion that was expressed by Lord CAMDEN in the case of Hindson v. Kersey, as quoted in King v. Almon (1765), 8 How. St. Tr., footnote 57:
"The discretion of a Judge is the law of tyrants: It is always unknown: It is different in different men: It is casual, and depends upon constitution, temper, passion. — In the best it is oftentimes caprice: In the worst it is every vice, folly, and passion, to which human nature is liable."
A similar thought was expressed by Edward Gibbon in The History of the Decline and Fall of the Roman Empire, Vol. 8, p. 111: "The discretion of the Judge is the first engine of tyranny." We consider that it is proper that trial judges have broad discretion in the granting of motions for new trial on the grounds of newly discovered evidence. However, when we are convinced that there has been an abuse of discretion, it is our responsibility to so hold.
A number of other grounds are urged as the basis for a new trial, and we find them devoid of merit. The following oral remarks of defendants' counsel in his closing argument to the jury are alleged to be prejudicial:
"I will say it again. If these people are compensated, we might as well tear down this courthouse and plow up the ground and plant potatoes, because inscrolled in the front door of this courthouse building are three words — Truth, Justice and Honor, and I sincerely ask you members of the Jury to sift the evidence in this case, and find the Truth, and do Justice with Honor."
This argument is well within the range of permissible argument. It may fairly be interpreted as a colorful exhortation to the jury that a just verdict would be a verdict in favor of the defendants. See Fields v. Creek (1963), 21 Wis.2d 562, 572, 124 N.W.2d 599.
Appellants also seek a new trial on the grounds that one of the jurors claimed that she had seen a cartoon which related to litigation over an automobile accident. This must be deemed to be a futile effort by a juror to impeach the verdict of the jury. Koss v. A. Geo. Schulz Co. (1928), 195 Wis. 243, 251, 218 N.W. 175.
Another argument advanced by the appellants is that the jury understood that the burden of proof required of the plaintiffs was to establish their case "beyond a reasonable doubt." The record simply does not support this contention. The jury was instructed that the burden of proof was "to satisfy or convince the jury, to a reasonable certainty, by the greater weight of the credible evidence." This was a proper instruction and adequately demonstrates that the appellants err in this contention.
By the Court. — Judgment reversed, and cause remanded for a new trial.
The following opinion was filed June 30, 1964:
The majority of the court has reached the conclusion that plaintiffs' showing of timely diligence in seeking to discover the identity of Officer Gascoigne was insufficient to make it an abuse of discretion for the circuit court to deny a new trial on the grounds of newly discovered evidence. Upon further review of the record, however (independent of the proposed new evidence), and particularly of the evidence of record tending to show that defendant Peters was the offending driver, it appears probable that the jury finding to the contrary was a miscarriage of justice. For that reason we exercise our discretion under sec. 251.09, Stats., to reverse the judgment and remand for a new trial, Our original mandate herein will remain unchanged.
Motion for rehearing denied, without costs.
I respectfully dissent from the holding of the court that plaintiffs made such a showing that they were not negligent in seeking to locate before trial Patrolman Eugene Gascoigne of Squad 844 that it was an abuse of discretion for the trial court to deny the motion for new trial.
The affidavits of Miriam Eisenberg and Alvin Krebs do not state when they made their efforts to locate this patrolman and therefore are fatally defective. The key affidavit is that of plaintiffs' counsel which reads as follows:
"Sydney M. Eisenberg, being first duly sworn on oath deposes and says:
"That before trial in the above stated matter, he made a diligent search for the officer of squad 844 who investigated the accident in the above stated matter on December 3, 1960, but was unsuccessful;
"That three days after the conclusion of the trial in the above entitled matter he first obtained the name of Officer Eugene Gascoigne and the testimony of Officer Gascoigne in the above entitled matter;
"That at that time he learned for the first time that Officer Gascoigne was driving squad 844 on December 3, 1960, and investigated the above entitled matter.
"That at no time during the course of the trial did the honorable judge instruct the jury not to read the newspapers."
"General averments as to diligence are not sufficient. The facts should be set out so as to negative fault on the part of the movant. 39 Am. Jur. New Trial, p. 191, sec. 190.
"Applications for a new trial on this ground are looked upon with . . . disfavor, the presumption being that the failure to discover such evidence is due `"either to intentional omission, or unpardonable neglect"' of the moving party. In order to rebut this presumption, `"His excuse must be so broad as to dissipate all surmises to the contrary."' Estate of Teasdale, supra (p. 4), citing Edmister v. Garrison (1864), 18 Wis. *594, *603, *604; also Mickoleski v. Becker (1948), 252 Wis. 307, 31 N.W.2d 508. Considering the rule and the affidavits presented, we are not able to hold that the trial court abused its discretion in determining that there was not a sufficient showing of diligence."
In view of the foregoing I would affirm both the judgment on the merits and the order denying a new trial. I am authorized to state that Mr. Justice HALLOWS and Mr. Justice BEILFUSS join in this dissent.