Opinion
No. 132.
Argued November 29, 1971. —
Decided January 4, 1972.
APPEAL from a judgment of the circuit court for Milwaukee county: RONOLD A. DRECHSLER, Circuit Judge. Affirmed.
For the appellant there was a brief by Eisenberg, Kletzke Eisenberg and oral argument by Jerome F. Pogodzinski, all of Milwaukee.
For the respondents there was a brief by Borgelt, Powell, Peterson Frauen, attorneys, and Donald R. Peterson of counsel, all of Milwaukee, and oral argument by Donald R. Peterson.
This appeal involves the propriety of an argument to the jury by the defendants' counsel in referring to collateral disability payments made to the plaintiff Johnnie B. Hubbard by his employer. Hubbard was a passenger in the car the defendant Johnny Mathis was driving when it became involved in an intersection collision with a car driven by the defendant Gary P. Baumler. Hubbard sued both Mathis and Baumler and their respective insurance companies American Mutual Insurance Company of Boston and American Mutual Liability Insurance Company. The jury found Hubbard 10 percent causally negligent, Mathis 65 percent, and Baumler 25 percent, and awarded damages of $2,750, which included $1,000 for past loss of wages.
During the trial, one of Hubbard's witnesses on direct examination read an admission sheet of the Curative Workshop in Milwaukee which stated Hubbard "collects sick pay of $70 weekly from Allis Chalmers." During the closing argument to the jury, defendants' counsel referred to this testimony without objection by Hubbard. A motion for a new trial was denied on the ground such reference was not improper as the information was put in the record by Hubbard's own witness. Hubbard appeals.
We have said many times that to raise a question on appeal as a matter of right, it must be properly preserved. Improper remarks in closing arguments cannot be a basis for a motion for a new trial or a basis for an appeal to this court if no timely objection to the argument was made. Basile v. Fath (1925), 185 Wis. 646, 649, 650, 201 N.W. 247, 202 N.W. 367; Zimmerman v. Dornbrook (1959), 6 Wis.2d 567, 575, 576, 95 N.W.2d 390. The time to object to an improper argument to the jury is at the time it is made or at the very latest before the jury returns its verdict. See Zweifel v. Milwaukee Automobile Mut. Ins. Co. (1965), 28 Wis.2d 249, 256, 137 N.W.2d 6.
Hubbard has waived his right to raise this issue because of his failure to make timely objection as a basis for a motion for a new trial. We do not consider this appeal raises a question of such merit or importance that this court should exercise its discretionary powers to discuss and decide the merits of the issue. Such action would not make any substantial contribution to the law of this state.
By the Court. — Judgment affirmed.