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Minder v. DeGross3/7/2000
er made no offer of proof as to Ducklow's qualifications, the foundation for his opinion, or even what his opinion was. Error may not be predicated on a ruling that excludes evidence in the absence of an offer of proof unless the substance of the evidence was apparent from the context of the question. See Wis. Stat. § 901.03(1)(b). While the fact of DeGross's intoxication was made known to the trial court, Ducklow's qualifications, his opinion that DeGross's intoxication contributed to the accident and the foundation for that belief were not made known to the trial court and are not obvious from the question. Therefore, the issue is not properly preserved for appeal.
. DeGross was called to testify adversely in Minder's case-in-chief. When asked by plaintiffs' counsel whether he was "under the influence" he responded that he "had a few beers, but ... was not intoxicated." Minder attempted to have the deputy who arrested DeGross for drunk driving testify in rebuttal regarding DeGross's intoxication.
. The trial court correctly ruled that this testimony was beyond the scope of rebuttal. Rebuttal is limited to new issues brought out in the defendant's case. Because the evidence in question came out in the plaintiff's case-in-chief, any facts contradicting that testimony should also have been presented in the case-in-chief. It is not appropriate to present evidence "in rebuttal" that does not rebut evidence presented in the defendant's case. See Rausch v. Buisse, 33 Wis. 2d 154, 167, 146 N.W.2d 801 (1966). While this rule is not inflexible, Minder has not established an adequate basis for allowing the evidence in this case. Because Minder presented no evidence of DeGross's improper driving and no expert evidence linking intoxication to a driver's ability to see objects in the dark, DeGross's denial that he was intoxicated is not so important as to require an exception to the general rule in order to achieve justice.
. Finally, Minder requests a new trial in the interest of justice, alleging that the real controversy has not been fully tried and that justice has miscarried based on the same issues previously addressed in this opinion. We conclude that any failure to fairly try the controversy was due to Minder's failure to call appropriate witnesses or lay necessary foundation and that he should not be allowed a second trial to remedy his own tactical errors. We also conclude that justice did not miscarry and there is no reason to believe a retrial would result in a different verdict. See Vollmer v. Luety, 156 Wis. 2d 1, 19, 456 N.W.2d 797 (1990).
By the Court. -- Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
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