Jonas v. Northeastern Mut. Fire Ins. Co.

• Citation: 44 Wis.2d 347,171 N.W.2d 185
• Parties: Carl JONAS et al., Respondents, v. NORTHEASTERN MUTUAL FIRE INS. CO., a Wis. corp., Appellant.
• Decision Date: 28 October 1969
• Court: United States State Supreme Court of Wisconsin

Page 185

171 N.W.2d 185

44 Wis.2d 347

Carl JONAS et al., Respondents, v. NORTHEASTERN MUTUAL FIRE INS. CO., a Wis. corp., Appellant.

Supreme Court of Wisconsin.

Oct. 28, 1969.

This is an appeal from a judgment in favor of the plaintiffs, Jonas, allowing them to recover $7,600 in addition to interest, costs, and disbursements against the defendant, Northeastern Mutual Fire Insurance Company. The trial judge directed a verdict when it appeared that the defendant could offer substantially no defense except for the testimony of certain witnesses whose testimony was excluded after an offer of proof.

The defendant insurance company has appealed on the grounds that the testimony of two witnesses who would have stated the plaintiff, Carl Jonas, had offered them money to burn the property was erroneously excluded. Defendant also claims that it was denied due process when the trial judge excluded directors of the insurance corporation from in camera conferences in chambers.

The trial judge took the position that, in the absence of any other testimony whatsoever to indicate a set fire, the testimony of two witnesses that they had been offered a sum to set the fire was not sufficient to establish prima facie evidence of a clear and convincing nature sufficient to permit the jury to consider the question of arson.

He also held that the corporation was properly represented in chambers in the only way it could be--by its agent, the trial attorney. Defendant has appealed from the judgment relying principally on the errors alleged above.

Jack McManus, Charles H. Kennedy, Madison, for appellant; Larry A. Haukom, Madison, of counsel.

Denissen, Kranzush, Stodola & Mahoney, Green Bay, for respondents.

HEFFERNAN, Justice.

At the outset we are compelled to consider plaintiffs' claim that the errors now claimed by the defendant were not raised by a motion for a new trial directed to the trial court, and that defendant is therefore foreclosed from raising the questions on appeal in the absence of a showing of compelling circumstances. We agree with plaintiffs' position. In the landmark case of Wells v. Dairyland Mut. Ins. Co. (1957), 274 Wis. 505, 80 N.W.2d 380, we pointed out that, where there was a trial to a jury, no error of the court 'should be reviewable as a matter of right on appeal without first moving in the trial court for a new trial bottomed on such error, if the error is of a category that a trial court could correct by granting a new trial.' Wells, supra, page 518, 80 N.W.2d page 387.

In Peterson v. Wingertsman (1961), 14 Wis.2d 455, 111 N.W.2d 436, we made it clear that the Wells rule was equally applicable to appeals from jury cases that were terminated by a directed verdict. In Gilson v. Drees Bros. (1963), 19 Wis.2d 252, 120 N.W.2d 63, the principal question posed was the applicability of Wells to cases tried before the date of the Wells mandate, but wherein a motion for a new trial could have been timely made before an appeal to this court. In that case we said that the bar was reasonably expected 'to understand that the Wells Case applied to the granting of a directed verdict.' Gilson, page 259, 120 N.W.2d page 67.

It is apparent that, by defendant's failure to move for a new trial, it has foreclosed itself from a review, as a matter of right, of the errors alleged.

In Wells, we pointed out that this court, in the exercise of its discretion, could under the provisions of sec. 251.09, Stats., order a new trial whenever we deem there has been a miscarriage of justice. In Wells, we said that the power was sparingly exercised but would be used in hardship cases to prevent a miscarriage of justice.

In Savina v. Wisconsin Gas Light Co. (1967), 36 Wis.2d 694, 704, 154 N.W.2d 237, 241, we pointed out, citing Lock v. State (1966), 31 Wis.2d 110, 142 N.W.2d 183, that the test to be used is the same as that employed in criminal cases:

'* * * before this court will exercise its discretionary power, it must be convinced that there has been a miscarriage of justice. This means the evidence and the law must be such that the plaintiff probably should have won and should therefore be given another chance.'

Although the defendant in its reply brief has asked that we order a new trial in the interest of justice, it has not argued that point on the basis of the criteria for the exercise of the discretion as set forth in Savina, s...