Rusch v. Sentinel-News Co.

• Decision Date: 10 October 1933
• Citation: 250 N.W. 405,212 Wis. 530
• Parties: RUSCH v. SENTINEL-NEWS CO.
• Court: Wisconsin Supreme Court

212 Wis. 530

250 N.W. 405

RUSCH

v.SENTINEL-NEWS CO.

Supreme Court of Wisconsin.

Oct. 10, 1933.

Appeal from an order of the Circuit Court for Milwaukee County; Charles L. Aarons, Circuit Judge.

Action by Clarence E. Rusch against the Sentinel-News Company. The civil court of Milwaukee county directed a verdict for defendant and dismissed the complaint, but the circuit court on appeal reversed the judgment and granted a new trial, and, from the order granting the new trial, defendant appeals.--[By Editorial Staff.]

Affirmed.

This action was commenced by the plaintiff on June 5, 1931, in the civil court of Milwaukee county to recover moneys alleged to be due by reason of losses which he had sustained as an employee of the defendant, arising out of uncollectible accounts, carrier and dealer defaults, thefts and insurance overcharges (all of which he had been required to make good), the refusal of the defendant to receive and credit newspapers offered to be returned by him, and the failure of the defendant to pay over to him the amount of a cash prize offered in a contest which he asserts he had won. The defendant denied liability. Trial was had to the court and a jury. Upon the closing of the testimony, defendant moved to direct a verdict in its favor. That motion was granted and the complaint dismissed. Whereupon the plaintiff appealed to the circuit court for Milwaukee county. Upon hearing duly had in that court, the judgment of the civil court was reversed and a new trial granted on the ground that the civil court erred in directing a verdict. From the order granting a new trial entered January 18, 1933, the defendant appealed.Lines, Spooner & Quarles, of Milwaukee (Chas. B. Quarles and Robert F. Carney, both of Milwaukee, of counsel), for appellant.

Nohl, Nohl, Petrie & Blume, of Milwaukee (Henry M. Blume and Lewis A. Stocking, both of Milwaukee, of counsel), for respondent.

NELSON, Justice.

The defendant contends that the civil court properly directed a verdict in its favor, that no error was committed in so doing, and that therefore the circuit court erred in reversing the civil court and granting a new trial. The plaintiff contends that the civil court improperly directed the verdict and that the order of the circuit court should be affirmed.

At the outset we desire to consider one of the contentions of the plaintiff based upon what was said in Edwards v. Milwaukee Electric Railway & Light Co., 191 Wis. 329, 210 N. W. 686. Plaintiff contends that, on an appeal to this court from an order of the circuit court for Milwaukee county which grants a new trial of an action on appeal to it from the civil court of Milwaukee county, such order should not be disturbed unless an abuse of discretion is shown. In the Edwards Case a new trial was granted by the circuit court of Milwaukee county on an appeal from the civil court, because of the error of the civil court in dismissing the plaintiff's complaint. This court, on the appeal from the order of the circuit court granting a new trial, inadvertently permitted Chief Justice Vinje to say: “We perceive no abuse of discretion on the part of the circuit court in granting a new trial. In such case the order must be affirmed.”

[1][2] In support of the language just quoted Raether v. Filer & Stowell Mfg. Co., 155 Wis. 130, 143 N. W. 1035, was cited. The language recited did not then, and does not now, correctly state the rule which guides this court on appeals from orders granting new trials because of errors committed on the trials. This court will not ordinarily reverse an order granting a new trial where the court in so doing exercises its discretion, unless it clearly appears to us that the trial court abused its discretion. Fontaine v. Fontaine, 205 Wis. 570, 238 N. W. 410. That is the law applicable to new trials granted in the court's discretion. On an appeal from an order granting a new trial because of error committed on the trial, this court will always examine the record for the purpose of determining whether the asserted error, because of which a new trial has been ordered, was in fact error. In view of the fact that an incorrect rule was inadvertently applied to the facts of the Edwards Case, we avail ourselves of this opportunity to correct the erroneous statement there made.

In the present action it clearly appears that the circuit court, after carefully examining the whole record, reversed the civil court and granted a new trial because it was of the opinion that the civil court erred in directing a verdict in favor of the defendant. The order granting a new trial was not a discretionary order, and we are therefore not bound by the rule which requires us to affirm an order granting a new trial unless there has been, in our opinion, an abuse of discretion. We have therefore re-examined the whole record for the purpose of determining whether the civil court erred in directing a verdict as found by the circuit court.

[3] The law is well established that a verdict may properly be directed only when the evidence gives rise to no dispute as to the material issues or only when the evidence is so clear and convincing as reasonably to permit unbiased and impartial minds to come to but one conclusion. The rule is stated in Kroger v. Cumberland Fruit Package Co., 145 Wis. 433, page 441, 130 N. W. 513, 515, 35 L. R. A. (N. S.) 473: “Upon the motion in this case the trial judge was asked to decide whether, conceding the evidence to establish in plaintiff's favor to a reasonable certainty all it tended to establish, could men of the age of discretion, of ordinary intelligence, reasonably differ respecting the proper conclusion to draw? Or to put it another way, was there room in the evidence for...