Javornik's Estate, In re

• Decision Date: 30 June 1967
• Citation: 35 Wis.2d 741,151 N.W.2d 721
• Parties: In re ESTATE of Aloys JAVORNIK, Deceased. STATE of Wisconsin, Appellant, v. Helen Gertrude VODNIK, claimant et al., Respondent.
• Court: Wisconsin Supreme Court

Page 721

151 N.W.2d 721

35 Wis.2d 741

In re ESTATE of Aloys JAVORNIK, Deceased.

STATE of Wisconsin, Appellant, v. Helen Gertrude VODNIK, claimant et al., Respondent.

Supreme Court of Wisconsin.

June 30, 1967.

Rehearing Denied Sept. 11, 1967.

Bronson C. La Follette, Atty. Gen., Roy G. Mita, Asst. Atty. Gen., Madison, for appellant.

Richard J. Steinberg, Milwaukee, for claimant-respondent.

HALLOWS, Justice.

The state contends the trial court abused its discretion in reopening the case for additional testimony because the grounds for such a request did not comply with the requirements for granting a new trial. The state views the rehearing as a new trial but it is clear from the record that the second hearing was a continuation of the first hearing because only additional proof was adduced and there was no resubmission of evidence. A new trial may be granted under sec. 270.49(1), Stats., in the interests of justice for several reasons, one of them being when material evidence which is likely to change the result is discovered after trial. Birnamwood Oil Co. v. Arrowhead Assn. (1961), 14 Wis.2d 657, 655, 112 N.W.2d 185; Foreman v. Milwaukee E.R. & L. Co. (1934), 214 Wis. 259, 262, 252 N.W. 588. While the granting of the new trial is in the discretion of the trial court, the rules for the exercise of such discretion to avoid an abuse thereof have been clearly enunciated in prior decisions.

The conditions which newly discovered evidence must meet to be a basis for a new trial are: The evidence must come to the moving party's knowledge after the trial; he must not have been negligent in seeking to discover the evidence before the first trial; the evidence must be material and not merely cumulative; and it must be reasonably probable the evidence will produce a different result on a new trial. Dunlavy v. Dairyland Mut. Ins. Co. (1963), 21 Wis.2d 105, 118, 124 N.W.2d 73; Estate of Kemman (1960), 11 Wis.2d 392, 397, 105 N.W.2d 769; Hoffman v. Buggs (1959), 6 Wis.2d 488, 491, 95 N.W.2d 237; Estate of Eannelli (1955), 269 Wis. 192, 214, 68 N.W.2d 791; Estate of Teasdale (1953), 264 Wis. 1, 4, 58 N.W.2d 404. These guidelines for newly discovered evidence as a basis for a new trial put a premium on conscientious preparation and rightly discourage haphazard preparation for trial.

The affidavit submitted by Helen Vodnik does not meet these standards. The most the affidavit states is that the evidence was not presented at the first hearing. The evidence was of such a nature that we must presume its existence was known or with due diligence should have been discovered in the course of normal preparation for the first hearing.

While the power to reopen a case for additional testimony also lies in the discretion of the court, the limitations upon the exercise of this power are not the same as those limiting the power to grant a new trial. No certain or mechanical rules have been formulated by this court for the exercise of the power. Certain it is a litigant has no strict right to reopen a case for the purpose of introducing additional evidence, but the discretion of the trial court seems to rest upon general principles of equity and justice including whether the opposing party is prejudiced in the trial or proof of his contentions. Robinson v. City of Oconto (1913), 154 Wis. 64, 142 N.W. 125; Barlass v. Kargus (1901), 111 Wis. 611, 613, 87 N.W. 800; Riha v. Pelnar (1893), 86 Wis. 408, 57 N.W. 51; State ex rel. Wildman v. Kidd (1885), 63 Wis. 337, 23 N.W. 703. See Radichel v. Kendall (1904), 121 Wis. 560, 99 N.W. 348; Wilke v. Milwaukee E.R. & L. Co. (1932), 209 Wis. 618, 626, 245 N.W. 660. Reopening for additional testimony a case tried to the court poses less problems than granting a new trial either before a court or a jury. In the present case the state did not object to the reopening for additional testimony and other than the result of the hearing, which is not considered an element of prejudice, has shown no prejudice from such action. Under these facts, we will not hold the court abused its discretion in reopening the hearing.

The testimony showed that Helen Vodnik lived in the decedent's home with him since she was 4 years of age and was raised by him and his wife. For 12 years prior to Mr. Javornik's death she lived in his home with her husband and sons and paid no rent. Mr. Javornik and the Vodniks lived together as one family. She did the housekeeping, bought food, prepared meals and did all the cooking. Mrs. Vodnik took care of Mrs. Javornik during her illness up to the time of her death in May, 1942. Mr. Javornik quit work at age 67 and lived to be 80 years old. About six years before his death Mr. Javornik became ill and required personal care which Mrs. Vodnik gave in the form of helping him dress, getting him in and out of bed, giving him medication, serving meals to him in bed and performing such services as an elderly sick person would need. While Mr. Javornik paid for the real estate taxes and some minor home improvements, Mrs. Vodnik and her husband advanced and paid other expenses, such as doctor bills and insurance for Mr. Javornik and real estate taxes after his death.

It was testified by one neighbor that Mr. Javornik had stated, 'I take care of her. Everything is hers. The house is her home.' Other neighbors' testimony was to the same effect. The trial court found that while Mr. Javornik may have made the statements there existed no oral promise based on a consideration so as to give rise to a contract. After the second hearing, the court found the services for six years before Mr. Javornik's death to be worth $7,000 on a quantum meruit basis. However, there is no evidence in the record of the value of any of the services rendered by Mrs. Vodnik.

A trial court, even a probate court which has some knowledge of the value of personal services rendered to elderly persons, cannot substitute its experience for expert testimony of value. Without testimony of the value of the services rendered, there is a lack of proof essential...