191 Wis. 239 | Wis. | 1926
Under the ruling made in the case of Maine v. Maryland C. Co. 172 Wis. 350, 178 N. W. 749, to the effect that the statute, sec. 4075," gives a privilege to the
The judgment must be reversed for another reason. The issue as to the cause of death was one for the jury. As the case stood when both parties rested, there was evidence upon that issue only in favor of the plaintiff. Defendant’s evidence upon that issue had been excluded. It had nothing but the certificate of death and proof of claim to rely upon and there was no dispute as to what they contained. Neither was there any dispute about plaintiff’s evidence as to the cause of death. Both parties, upon such' a record, might well move for a directed verdict. But when the court later reached the conclusion that the defendant’s testimony as to the cause of death had been erroneously excluded, the case opened up a jury issue, and the court could not deprive a party of his right to a jury trial. The cases which the trial court relied upon do not meet the situation of this case. 'In
When both parties without reservations move for a directed verdict they thereby, under the provisions of sec. 2857a, waive a jury trial as to the entire case. But such entire case is in substance as it then stands. It does not operate as a waiver of a jury on a new trial. In this case the court granted a new trial because of error committed upon the trial just had, and it could not deprive a party of a jury trial upon a jury issue then first permitted to be tried.
By the Court. — Judgment reversed, and cause remanded for further proceedings according to law.