Fahrenberg v. Tengel

• Decision Date: 06 May 1980
• Docket Number: No. 78-293,78-293
• Citation: 96 Wis.2d 211,291 N.W.2d 516
• Parties: Ray C. FAHRENBERG, d/b/a Doc's Camera Mart, Plaintiff-Respondent, v. Fred TENGEL, Jr., and Ralph Bremer, Defendants, Keith Krause, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 516

291 N.W.2d 516

96 Wis.2d 211

Ray C. FAHRENBERG, d/b/a Doc's Camera Mart, Plaintiff-Respondent, v. Fred TENGEL, Jr., and Ralph Bremer, Defendants Keith Krause, Defendant-Appellant.

No. 78-293.

Supreme Court of Wisconsin.

Submitted on Briefs March 5, 1980.

Decided May 6, 1980.

Richard E. Reilly and Gimbel, Gimbel & Reilly, Milwaukee, for defendant-appellant.

Clifford C. Kasdorf, William A. Sowinski, Jr., and Kasdorf, Dall, Lewis & Swietlik, S. C., Milwaukee, for plaintiff-respondent.

ABRAHAMSON, Justice.

This appeal is from a judgment awarding the plaintiff $20,000 compensatory damages and $125,000 punitive damages. The defendant on appeal attacks the award of punitive damages. We affirm the judgment.

I.

Ray C. Fahrenberg, the plaintiff, commenced a civil action seeking compensatory damages of $30,000 from defendants Bremer, Tengel and Krause for unlawfully removing coins belonging to plaintiff from plaintiff's business, Doc's Camera Mart, and seeking punitive damages of $250,000 from defendant Krause individually, alleging that Krause intentionally and knowingly converted the coins to his own use and for his own profit, in wanton, wilful and reckless disregard of the plaintiff's rights.

Ralph Bremer and Fred Tengel had been convicted of burglarizing Doc's Camera Mart. Defendant Krause had been granted immunity from prosecution for burglary and receiving stolen property in exchange for his testimony in the criminal trial against defendants Bremer and Tengel.

In the civil case, which was tried to a jury after the criminal convictions, defendant Tengel testified that he had known defendant Bremer for five to ten years prior to the burglary but that he had first met defendant Krause approximately one to two days before the burglary when the burglary was planned. Tengel testified that Krause explained the layout of Doc's Camera Mart and stated that there were no burglar alarms. Krause also promised to pay for all coins stolen by Bremer and Tengel from Doc's Camera Mart. Tengel further testified that defendants Bremer and Tengel broke a window and entered Doc's Camera Mart in the middle of the night and removed coins which they took to defendant Krause who paid Tengel $3,000 for the coins. Krause told Tengel that the value of the stolen coin collection was $10,000.

Defendant Bremer did not testify at the trial because he no longer resided in Milwaukee, Wisconsin. His deposition, taken April 21, 1975, was read into the record. Defendant Bremer stated that approximately one week prior to the burglary, he and defendant Krause met and discussed breaking into Doc's Camera Mart. Like defendant Tengel, Bremer stated that Krause described the interior of Doc's Camera Mart, the location of the various coins and the absence of a burglar alarm system and that Krause suggested that Bremer enlist the aid of a friend to commit the burglary. According to Bremer, he spoke with Tengel, and the three defendants planned the burglary. Bremer stated that Krause told him the coins stolen were probably worth $40,000 to $50,000. Krause gave Bremer $300 initially, promising to pay him more money after he sold the coins. Upon demand, Krause gave Bremer an additional $1,100. Neither Tengel nor Bremer knew anything about coins or coin collecting prior to the burglary.

At trial plaintiff examined defendant Krause adversely. Krause, while acknowledging that he knew where Doc's Camera Mart was located, denied ever having entered the shop prior to September 1968 (the month during which the burglary occurred). However, the plaintiff, who had seen Krause at coin conventions, testified that he specifically remembered Krause being in or near his store twice within the two-month period before the burglary.

At trial Krause testified that he had met Bremer approximately one week prior to the burglary; that he had never discussed with Bremer the possibility of burglarizing Doc's; and that he and Bremer had met at 10 p. m. on the night of the burglary to discuss the possibility of Krause's buying coins that Bremer would get later that evening.

Krause denied knowing where Bremer and Tengel had gone when they left him on the night of the burglary, denied knowing that they intended to burglarize Doc's Camera Mart, and also denied giving them a layout of the store or information on how to break into Doc's. Krause testified, however, that Bremer and Tengel returned about 4 a. m. with about three boxes of coins which he knew were stolen. Krause testified that he had been involved in the coin business for several years; that he had purchased and sold about a couple million dollars worth of coins in a five-year period from 1968-1973; and that on a business trip to Rockford, Illinois, he had twenty eight thousand four hundred dollars worth of coins.

Krause's testimony at trial was inconsistent in several respects with his testimony at the preliminary hearing in the criminal action, and, when confronted with the inconsistencies, he stated at trial that he had lied at the preliminary hearing.

Over defendant's objection, Krause was recalled as an adverse witness, and Krause admitted to having two prior arrests and convictions for criminal offenses.

Despite objections by Tengel's attorney, defendant Tengel was recalled as an adverse witness, and Tengel testified that he had been convicted of a crime three times, including the burglary of Doc's Camera Mart.

The jury in answer to special verdict questions found that defendant Krause had conspired and counseled defendants Bremer and Tengel to burglarize Doc's Camera Mart and had agreed to and did pay them for the coins which he knew were stolen. The jury assessed $20,000 compensatory damages against Krause, Bremer and Tengel and $200,000 punitive damages against defendant Krause.

Krause's counsel moved to set aside the verdict and for a new trial pursuant to sec. 805.15(1), Stats., ¹ on the grounds that the jury's award of punitive damages was excessive and without evidentiary foundation and that the trial court had erred in denying defendant's motion for a mistrial which was based on improper reference to Krause's criminal record in plaintiff's closing argument.

The circuit court denied defendant's motion to set aside the verdict and for a new trial but reduced the amount of punitive damages from $200,000 to $125,000. ²

II.

Defendant Krause contends on appeal ³ that punitive damages were not "justified" in this case because there was "no such showing of aggravation, insult or cruelty with vindictiveness and malice." Defendant cites several cases for the proposition that the plaintiff must show "express malice or ill will" to justify punitive damages. We do not find the cited cases persuasive. ⁴

This court has declined to accept the position asserted by the defendant, namely that unless the plaintiff shows express malice or ill will he cannot recover punitive damages. In Kink v. Combs, 28 Wis.2d 65, 79, 135 N.W.2d 789, 797 (1965), we stated:

"The defendant claims that the question of punitive or exemplary damages should not have been submitted to the jury because defendant's acts were not activated by malice or vindictiveness. However, malice or vindictiveness are not the sine qua non of punitive damages.

" 'Where the defendant's wrongdoing has been intentional and deliberate, and has the character of outrage frequently associated with crime, all but a few courts have permitted the jury to award in the tort action "punitive" or "exemplary" damages, or what is sometimes called "smart money. " ' Prosser, Law of Torts (2d ed. 1955), p. 9, sec. 2.

"For the award of punitive damages it is sufficient that there be a showing of wanton, wilful, or reckless disregard of the plaintiff's rights. 6 C.J.S., Assault and Battery, sec. 55 b(3), page 904."

To sustain an award for punitive damages, the law does not require a specific finding of an intentional and ruthless desire to injure, vex or annoy. The injured party need show only a wanton, willful or reckless disregard of the rights of others on the part of the wrongdoer. "Reckless indifference to the rights of others and conscious action in deliberate disregard of them . . . may provide the necessary state of mind to justify punitive damages." 4 Restatement (Second) of Torts sec. 908, comment b, p. 465 (1977). See also, Anderson v. Continental Ins. Co., 85 Wis.2d 675, 697, 271 N.W.2d 368 (1978); Mid-Continental Refrigerator Co. v. Straka, 47 Wis.2d 739, 744-748, 178 N.W.2d 28 (1970); Jones v. Fisher, 42 Wis.2d 209, 218, 219, 166 N.W.2d 175 (1969); McCormick on Damages, sec. 79, p. 280 (1935); Prosser, Law of Torts 10 (4th ed. 1971). ⁵

The fact that the conduct on which the lawsuit is based is unlawful or subjects the defendant to criminal prosecution does not in and of itself authorize the recovery of punitive damages. Punitive damages are not allowed for all torts or crimes but are allowed only for those "which are malicious, outrageous or a wanton disregard of personal rights which require the added sanction of a punitive damage to deter others from committing acts against human dignity." Entzminger v. Ford Motor Co., 47 Wis.2d 751, 757, 758, 177 N.W.2d 899, 903 (1970).

There was sufficient evidence in the case at bar to justify the trial court's submitting the punitive damage questions to the jury, and the jury was instructed that punitive damages may not be awarded unless it found that the acts of the defendant were done maliciously or in wilful or reckless disregard of the plaintiff's rights. ⁶ There was ample evidence at trial to support the jury's conclusion that the defendant's wrongdoing was in wanton, wilful or reckless disregard of the plaintiff's rights. The record contains evidence that Krause went to Doc's Camera Mart before the burglary, concluded that there were no burglar alarms, determined the nature and location of the valuable coins in the store, found two people to burglarize the store and advised them how to...