John Mohr & Sons, Inc. v. Jahnke

• Decision Date: 30 June 1972
• Docket Number: No. 393,393
• Citation: 55 Wis.2d 402,198 N.W.2d 363
• Parties: , 1972 Trade Cases P 74,145 JOHN MOHR & SONS, INC., Plaintiff-Appellant, v. Donald E. JAHNKE and Vac-Air, Inc., Defendants and Third-Party Plaintiff-Respondents, Albert E. Mohr, Jr., et al., Third-Party Defendant-Appellants.
• Court: Wisconsin Supreme Court

Page 363

198 N.W.2d 363

55 Wis.2d 402, 1972 Trade Cases P 74,145

JOHN MOHR & SONS, INC., Plaintiff-Appellant, v. Donald E. JAHNKE and Vac-Air, Inc., Defendants and Third-Party Plaintiff-Respondents Albert E. Mohr, Jr., et al., Third-Party Defendant-Appellants.

No. 393.

Supreme Court of Wisconsin.

June 30, 1972.

Rehearing Denied Sept. 6, 1972.

This action was commenced against Donald E. Jahnke and Vac-Air, Inc., for specific performance of a contract to assign a patent. The complaint alleged Jahnke developed a unique packaging device which lifted and vacuum-sealed poultry on an assembly line; that the device was made while Jahnke worked for the plaintiff John Mohr & Sons, Inc. (Mohr), and under an employment agreement with Jahnke the invention became the property of the plaintiff and Jahnke has refused to assign his patent. Jahnke and Vac-Air, Inc., denied the invention was made while Jahnke was an employee of Mohr. They also counterclaimed and in a third-party complaint alleged the plaintiff and its president Albert Mohr, Jr., Calvin N. Hansen, its general manager, and Kenneth Kraft, an employee, had combined and conspired in restraint of trade to reduce and eliminate competition of Jahnke and Vac-Air, Inc.

The jury found in its verdict that Jahnke did not 'make' the device while in the employment of Mohr and the plaintiff and third-party defendants wrongfully conspired to restrain competition by Jahnke and Vac-Air, Inc., in the sale of vacuum lifters to the poultry packaging industry. Compensatory damages were found in the amount of $35,000 and punitive damages in the amount of $25,000. The trial court trebled the compensatory damages, reduced the punitive damages to $500, and found reasonable attorneys' fees to be $20,000. From the judgment entered in favor of Jahnke and Vac-Air, Inc., this appeal is taken by the plaintiff and third-party defendants. Jahnke and Vac-Air, Inc., have filed a motion to review the reduction of punitive damages.

Ray T. McCann and Richard A. McDermott, Milwaukee, for appellants.

Whyte, Hirschboeck, Minahan, Harding & Harland, Richard C. Ninneman, and Joseph C. Branch, Milwaukee, of counsel, for respondents.

HALLOWS, Chief Justice.

The first issue concerns the question of sufficient credible evidence to sustain the jury's verdict. It is well settled that if there is any credible evidence which under any reasonable view supports the burden of proof, the verdict will not be disturbed on appeal.

The evidence is conflicting. Donald E. Jahnke and Kenneth A. Kraft were both employed by Hydrahone which was purchased and became a division of John Mohr & Sons, Inc., in 1962. This division was engaged in the manufacture and sale of poultry-packaging equipment. On April 13, 1964, Jahnke executed the agreement which is the basis of the action. Both Jahnke and Kraft terminated their employment about June 20, 1968. In July they organized Vac-Air, Inc., to engage in the manufacture and sale of a device invented by Jahnke for the lifting and vacuum sealing of poultry on an assembly line. After some months, Kraft left Vac-Air, Inc., and in January, 1969, was reemployed by Mohr, for whom he testified at the trial. The record discloses evidence in favor of Mohr which, if believed by the jury, would have Jahnke working on the new type of vacuum lifter as early as December, 1967, when he was an employee of the plaintiff. There was testimony this unit was tested at Hartwig's poultry plant on June 29, 1968, which would be about a week after termination of Jahnke's employment. Jahnke testified he did not work on the invention as an employee; that during the months of March, April, and May of 1968, he and Kraft were thinking of going into the welding business; that the first time he did any work on a lifter was on the weekend of June 5th, 1968, but gave up this attempt because the design failed. He testified that his later experimentation with an air valve, as distinguished from a mechanical valve or lifter, began with sketches around June 26 and he tested the device at Hartwig's on July 15th. Most of the supporting evidence of the two versions is in sharp conflict and makes the ultimate solution of the question of when Jahnke 'made' the invention one of credibility. While we might not have decided this factual issue as the jury did, nevertheless, the evidence is such that this court cannot reverse the finding of the jury based on its belief of Jahnke's version or dispute the weight it gave to the evidence it accepted. If the jury had found for the plaintiff, we, likewise, would have had to sustain that verdict. See Estate of Daniels (1972), 53 Wis.2d 611, 615, 193 N.W.2d 847.

But it is claimed a new trial should be granted on the basis of newly discovered evidence. This evidence was the testimony of Clarence Hartwig, Jr., that he remembered Jahnke and Kraft testing the vacuum lifter at the Hartwig plant on June 28, 1968, and not in July as claimed by Jahnke. The trial court denied a new trial on the ground of newly discovered evidence because it thought the evidence was cumulative, the plaintiff had not used reasonable and diligent means to secure the witness prior to trial and that most likely a different result would not be reached on a retrial. In the Estate of Eannelli (1955), 269 Wis. 192, 214, 68 N.W.2d 791, (and followed consistently, see State v. Herfel (1971), 49 Wis.2d 513, 521, 182 N.W.2d 232; Lock v. State (1966), 31 Wis.2d 110, 117, 142 N.W.2d 183) five requirements were laid down before a motion for a new trial on the basis of newly discovered evidence should be granted. These were: (1) The evidence must have come to the knowledge of the party after the trial; (2) the party must not have been negligent in seeking to discover it; (3) the evidence must be material to the issue; (4) the evidence must not be merely cumulative; and (5) it must be reasonably probable that a different result will be reached on a new trial.

While it is true Hartwig's testimony might be cumulative, we would not place the denial on that ground. Where uncorroborated evidence is sharply conflicting, new evidence which is cumulative for one version may add sufficient weight and credibility for a jury to accept that version as true. While Mohr's affidavit in support of its motion referred to a series of phone calls made before trial in an unsuccessful attempt to locate Hartwig, the trial court seemed to be impressed with the lack of diligence in securing this testimony of Hartwig and with the promptness with which the witness was located by Mohr after the unfavorable verdict. Rather than being newly discovered evidence, this seems to be evidence which could reasonably have been discovered and should have been secured by timely and proper preparation for trial. The motion for a new trial on newly discovered evidence cannot be used as a cure for inadequate preparation for trial. One seeking a new trial on this ground has a substantial burden to convince the trial court. Combs v. Peters (1964), 23 Wis.2d 629, 636, 640, 127 N.W.2d 750, 129 N.W.2d 174.

The trial was bifurcated in that the specific performance issue created by the complaint was tried first and separately from the conspiracy issue on the cross-complaint. Hartwig was allowed to testify when the conspiracy issue was tried but his testimony was restricted to the question of Jahnke's credibility. The trial court reasoned that since the jury found for Jahnke and Vac-Air, Inc., on the conspiracy issue and found malice on the part of Mohr, the jury 'most likely' would not have found a different result on the contract issue if there were a retrial. We agree and conclude the trial court's denial of a new trial was not error.

It is also argued a new trial should be ordered in the interest of justice under sec. 251.09, Stats. This argument is based partly on a new theory the plaintiff had shop rights to the invention of Jahnke and the issue presented to the jury of Mohr's right to the patent based upon Jahnke's agreement was not the real issue. The contract provided Mohr was to be the owner of any invention Jahnke 'made' during his employment which related to Mohr's business. Whether shop rights employs the concept of 'made' in relation to an invention, we need not decide. Counsel for Mohr did not object to the form of the inquiry posed to the jury using the word 'made.' This was properly based on Jahnke's contract and the issue on this contract theory was what was intended or meant by the parties by the word 'made' in relation to the invention. Since the plaintiff chose to pursue its claim on the language of the contract, we do not think it ought now be permitted to change the theory of its case to one of shop rights. Sec. 251.09, Stats., ¹ granting this court the power of discretionary reversal, was not intended to allow plaintiff to proceed to a trial on a valid theory of a cause of action and, losing on that theory, to have a second trial on a different, valid theory of a cause of action. When there are alternative causes of action and one makes a choice, there is little room for arguing the real issue has not been tried.

We find no merit in the argument the compensatory damages in the amount of $35,000 was excessive. The evidence supports the verdict and the trial court upheld the award and thoroughly discussed the evidence. In such a case this court will reverse only if there has been an abuse of discretion. Page v. American Family Mut. Ins. Co. (1969), 42 Wis.2d 671, 681, 168 N.W.2d 65; Bach v. Liberty Mut. Fire Ins. Co. (1967), 36 Wis.2d 72, 83, 152 N.W.2d 911; Gervais v. Kostin (1970), 48 Wis.2d 190, 201, 179 N.W.2d 828.

We find no error in the trial court's fixing counsel's fees in the amount of $20,000. The allowance of costs and of attorney's fees is provided for in sec. 133.01, Stats., in 1957. This seems to us to be a reasonable fee in this anti-trust case. See W. W. Montague & Co. v. Lowry (1904), 193 U.S. 38, 48, 24 Sup.Ct. 307...