Sheldon v. Singer, 144
| Decision Date | 21 December 1973 |
| Docket Number | No. 144,144 |
| Parties | Clem E. SHELDON, Appellant, v. Shirley N. SINGER, Respondent. |
| Court | Wisconsin Supreme Court |
Becker, Kinnel, Doucette & Mattison, Milwaukee, for appellant; James R. Mattison, Milwaukee, of counsel.
James G. Howard, Binder, Zirbel & Howard, Milwaukee, for respondent.
Four issues are raised on this appeal:
1. Did the trial court err in refusing to grant a motion for new trial on the basis of newly discovered evidence?
2. Did the allowance of testimony on an 'undisclosed defense' prejudice the plaintiff's case?
3. Did the trial court err in refusing to give the requested instruction of the plaintiff?
4. Is the plaintiff entitled to a new trial in the interest of justice because the trial court proceeded on an erroneous view of the law?
1. Newly discovered evidence. Judgment was entered on the verdict on November 17, 1971. In January, 1972, the plaintiff sought a new trial on the basis of newly discovered evidence. The plaintiff claimed that he found a bill of sale executed by the defendant in some old files in his New York office. He explained his delay in discovering the document by noting that he had several residences scattered across the country and kept records in several places.
The granting or denying of a motion for a new trial on the grounds of newly discovered evidence is within the sound discretion of the trial court. 1 The denial of the motion in this case was clearly not an abuse of discretion. As stated in John Mohr & Sons, Inc. v. Jahnke: 2
Here the plaintiff, at several points during the trial, had stated that any agreement of the parties was oral and that he had no receipt to show any payments had been made. He specifically testified that the defendant had requested a bill of sale but that one was never prepared. This certainly casts doubt on the authenticity of this purported bill of sale. The defendant also denied by affidavit that the signature on the document was hers. These suspicious circumstances are in addition to the fact that it appears that the plaintiff was negligent in not finding a document which was in existence during the entire duration of the trial and allegedly in his files. The plaintiff was able to produce checks from 1965 but not the 'key' document.
2. Undisclosed defense and prejudice to plaintiff. The plaintiff contends that the court committed prejudicial error when it permitted the defendant to testify about a conversation between the parties in late spring or early summer of 1968. The defendant, in response to questions put by her defense attorney, testified that the plaintiff came to her home in person and that while there he said that the defendant would have to pay a certain amount of money for having received the tip to initially purchase the stock. She testified that the plaintiff said that the people in New York felt that she should pay for the privilege of getting in on the ground floor. The plaintiff's counsel objected and, out of the presence of the jury, told the court he felt this was a 'special defense' not pleaded by the party. Counsel pleaded surprise and said he had no information leading to this 'defense.' The trial judge responded 'I don't consider that a special defense.'
The trial court was clearly correct. The testimony about a demand for payment for a stock tip is in no way an affirmative defense to this action which had to be pleaded in the answer. It does not constitute a counterclaim. It could even be considered irrelevant or immaterial to the issues in this case, but the plaintiff's counsel did not make that objection. The defendant was merely giving her version of a conversation which had been testified to by the plaintiff. Plaintiff's attorney asked the defendant on the stand if she recalled asking the plaintiff to become a joint venturer for 25 percent of the profits in all her investments. She said no, she did not recall that. On cross-examination, defendant's attorney asked the plaintiff if it was not true that he felt he was entitled to some of the profits because of his very helpful and lucrative tip about the Heritage stock. The plaintiff denied this. On redirect, the plaintiff said that the defendant had offered to give him 25 percent of the profit on the sale of shares which she had bought at a later date but that he had declined the offer, telling her to pay off her bank loan. Thus it clearly appears that the testimony objected to was the defendant's version of conversations testified to by the plaintiff.
The plaintiff argues that this testimony was prejudicial to the plaintiff because of the bad light it shed on him. In the plaintiff's brief it is stated:
In the plaintiff's reply brief, counsel outlines what he considered the clever attack on the plaintiff's integrity. It is said to have started with references to the plaintiff's connection to a handicap sheet and ended with a tie-in to stock tipping. Plaintiff's counsel did not at any time interpose any objection to the testimony which he now claims prejudiced his client in the eyes of the jury. It is necessary to make immediate objection and to move for a mistrial if the issue is misconduct of counsel. 3
Of course this court can grant a new trial in the interest of justice even though no objections were made if it feels that for any reason justice has probably miscarried. No miscarriage of justice has resulted here. Just because a party is connected with horse wagering does not mean that that party cannot get a fair trial. Here, plaintiff's own counsel initially brought the plaintiff's business enterprise to the attention of the jury. His questions developed the history of the Lawton handicap sheet in some detail including the fact that it was started by a New York judge. It was explained that the plaintiff was a majority stockholder in the company which published the handicap sheet and that the company kept statistical profiles for many other sports which information was subscribed to by magazines and sportscasters. This is hardly a prejudicial picture of the plaintiff's business connections.
On cross-examination of the plaintiff, defendant's counsel elicited the information that the plaintiff had told many other people to buy Heritage Industrial Corporation stock. Later the defendant testified that the plaintiff indicated he felt she should pay for the 'tip' he had given her. Plaintiff's counsel claims this 'cleverly extended the doctrine of horse handicapper to that of stock tipster.' We fail to see anything inherently prejudicial in this information.
3. Error in instructions. The plaintiff claims error in the trial court's failure to...
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