Meke v. Nicol
| Decision Date | 03 January 1973 |
| Docket Number | No. 244,244 |
| Citation | 203 N.W.2d 129,56 Wis.2d 654 |
| Parties | Michael T. MEKE, Respondent, v. George NICOL, Appellant, Lawrence Grundy, Defendant. |
| Court | Wisconsin Supreme Court |
Hansen, Eggers, Berres & Kelley, Beloit, for appellant.
Korth, Rodd, Sommer & Muow, S.C., Rhinelander, for respondent; William E. Schirger, Rockford, Ill., of counsel.
The following issues are presented on this appeal:
1. Did the trial judge err in admitting evidence of defendant's financial worth.
2. Did the trial court err in admitting certain evidence as tending to show intent.
3. Was the jury's verdict a product of passion and prejudice such that it would preclude application of the Powers rule.
4. Did appellant timely serve and file the transcript on appeal.
Evidence of Nicol's Worth.
Defendant contends that the admission into evidence over his objection of a letter from himself to his daughter, Joyce, which related solely to his financial worth was prejudicial in that it was offered solely to establish his wealth for purposes of punitive damages. The letter read as follows:
'January 28, 1970
'Dear Joyce:
'I have some real hot news for you and that is the only reason I am writing. It has been my life's ambition to leave a very lucritive (sic) legacy to my children but now all of my hard labor and that of your mother has been for naught, because your ernstwhile ex-husband has sued for a million-one hundred thousand dollars. Don't laugh it is true . . . So every episode that happened in Wisconsin between you and your ex-husband, you jot down. Oh yes, Larry is also being sued for a million one hundred thousand dollars too . . .
'. . .
'The weather is beautiful today, a very light breeze and about 78 degrees and I am going to enjoy every bit of it as apparently I won't be here to enjoy it very much longer because if I refuse to pay this $1,100,000 they can probably put me in jail.
'Well this has shook me up so terribly that I can't think of anything else to say so send me your condolences by return mail. Once again, I hope you don't think this is a joke. It is not a joke.
'P.S. In view of all of this you had bettee (sic) tell Larry to have Mike rubbed out completely, he would save 2,200,000. hah, hah.
'I have filed a counter-claim against Mike for $100,000.
When the letter was read to the jury all references to the amount prayed for in plaintiff's complaint were omitted. Although defense counsel had no objection to the letter so long as it was read in its entirety, he did object to it being allowed to go into the jury room. When the letter was in fact sent to the jury room, the reference to the $1,100,000 had not been blocked out. Obviously, when the letter was read to the jury without reference to the $1,100,000 there was no need to object by defendant's counsel.
Likewise, defendant contends that there was other evidence offered to prove his financial worth: an offer to purchase in the amount of $130,000 from plaintiff to defendant for property owned by defendant in Illinois. A letter from defendant to his daughter referring to a Mexican vacation and to a camping trailer recently sold; and a specific question to defendant of whether or not he owned Florida property.
Plaintiff argues, however, that all of this evidence was introduced not for the purpose of proving defendant's wealth, but rather served the legitimate purpose of helping to prove his case in chief. We disagree. The whole thrust of plaintiff's questions and exhibits was to show that defendant Nicol was a wealthy man.
Although punitive damages may be awarded where there is one judgment against several joint tort-feasors, White v. White (1909), 140 Wis. 538, 122 N.W. 1051, evidence of the wealth of any of the defendants is inadmissible. McAllister v. Kimberly-Clark Co. (1919), 169 Wis. 473, 173 N.W. 216.
We think it was prejudicial error to admit evidence of defendant Nicol's wealth.
Defendant contends that the trial court erroneously admitted several letters from himself to his daughter. These letters designated at trial as plaintiff's Exhibits 19A 1 and 21A 2 were introduced for the purpose of showing the defendant's intent as well as to impeach the testimony of defendant. Defendant argues that neither of the exhibits show intent and that they were actually introduced to show his character and to cause the jury to become prejudiced against him and that this error had a substantial effect on the jury's finding that he had committed the alleged assault and battery and false imprisonment.
The primary question before the jury was whether defendant had actually intended to shoot the plaintiff and, if so, whether he was acting in self-defense. This intent must be collected by the jury from the circumstances of the case. Brabazon v. Joannes Brothers Co. (1939), 231 Wis. 426, 436, 286 N.W. 21. On the other hand, evidence of the general character or reputation of the parties in an action for assault and battery may not be introduced merely for the purpose of raising a presumption favorable to one party or unfavorable to the other. 6 Am.Jur.2d Assault and Battery, Sec. 226, at page 176.
These exhibits were actually evidence of defendant's character. Although they showed ill feelings by George Nicol toward Meke, they made no reference to Nicol's intentions. Since the exhibits did not evidence any intent, it was error to admit them.
The question arises whether the admission of the exhibits above referred to constituted prejudicial error. 3
If these letters had not been admitted into evidence, the only facts showing intent are those surrounding the shooting. Meke testified that Nicol pulled out his pistol, aimed and shot him. At trial, Nicol testified that when he was absolutely certain that plaintiff was going for a gun he jerked his gun from his pants pocket, but that it stuck on the way out actually discharging through his pants pocket. At a deposition taken from the defendant the day after the shooting, he stated: Nicol told officers investigating the incident that he 'shot for the man's wrist, thinking he was going for a gun.'
Plaintiff contends that on the basis of the conflicting and contradictory testimony given by the defendant the jury was entirely justified in disregarding any of his testimony as to how the shooting occurred. If this were all of the defense testimony, plaintiff's contention would be correct. However, there was undisputed testimony that the bullet ricocheted off Meke's right knee without breaking the clothing and lodged in his right forearm just below the elbow. The jury could have believed that if Nicol had intended to harm Meke he would not have missed at such a close range and clearly would have fired the gun a second time which he did not do. Also that he would not have called the police to come over prior to Meke's arrival at the cottage if he had any intent to harm the plaintiff. Without the letters, it is possible that the jury would have believed from all of the evidence that Nicol did not intend to commit assault and battery. The admission of the letters affected Nicol's substantial rights. It would have produced a result that would have been more favorable to Nicol if they had not been received.
The same reasoning applied to Nicol's intent to falsely imprison Meke. Meke testified that after his arrival at Nicol's cottage he sat in a chair while Lawrence Grundy pointed a shotgun toward him. Nicol told Meke to stay in the chair when he tried to leave. On the other hand, Nicol testified the he ordered Meke out of the cottage twice before the shooting but Meke would not leave. The jury could have believed either Meke or Nicol. Without the letters, it is possible that the jury would have believed Nicol and found he did not intend to falsely imprison Meke.
We conclude from the entire record that the error complained of has affected the substantial rights of defendant Nicol.
Defendant Nicol contends that the verdict was the result of passion and prejudice and that since the Powers rule is inapplicable to cases where an excessive verdict is so motivated, it was error for the trial court to reduce damages and to give plaintiff his option of selecting either the reduced amount or a new trial on the issue of damages alone.
Defendant bases his contention of perversity by making a comparison of the size of the verdict with the injury. The jury awarded $20,000.00 for Meke's injuries.
As a result of the injury, Meke had medical bills of $35.00. The hospital reports indicated that the bullet grazed his knee but there was no break in the skin. The bullet ricocheted off his knee and penetrated two centimeters into his forearm. There was no medical testimony in reference to the injury.
Meke testified that he did not realize he had been shot and that he pulled the bullet out of his arm. He further stated that he had no disability of any kind and the arm did not bother him in any way at the time of trial.
In regard to compensatory damages for false imprisonment, the record does not reveal serious injury. Meke testified he arrived at the Nicol cottage between 8:30 P.M. and 9:00 P.M. Officer Neff of the Minocqua Police Department testified he received a call to come to the cottage at 9:15 P.M. and that he arrived 15 minutes later. The record showed Nicol had phoned...
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