Koss v. A. Geo. Schulz Co.

195 Wis. 243 | Wis. | 1928

Rosenberry, J.

The matters involved in this appeal •were exhaustively considered in Wolfgram v. Schoepke, 123 Wis. 19, 100 N. W. 1054; and we are not disposed to relax in any degree whatever the rules there laid down, nor is it necessary to repeat here what was said there. If there was no other disclosure with reference to the verdict in this case except such as is contained in the affidavits of the eleven jurors, the case would fall within the rule of Wolf-gram v. Schoepke, supra. There were other proceedings had in this case before the jury separated and before the jurors had an opportunity to learn from others the legal consequences of the verdict which they had rendered. In disposing of the issues raised by plaintiffs motions after verdict, the trial court said:

“But assuming that the jurors’ affidavits are admissible as evidence and that they may be considered by the court, it then becomes the duty of the court to pass upon all the evidence before the court, including, of course, the proceedings which took place in open court when the original verdict was returned and also at the time when the corrected verdict was returned.

“Upon an examination of all of the affidavits presented upon behalf of the plaintiff, the affidavit of the foreman of the jury, presented on behalf of the defendant, the transcript of the record of the proceedings had in open court when the jury returned its original verdict, and the further proceedings when the jury returned with its corrected verdict, and also having in mind a clear recollection of the discussion which took place in the court’s presence, between court and jurors, I am well satisfied that there were no indications whatever of any confusion on the part of the foreman or other members of the jury, and that the verdict as corrected was the actual and true verdict of the jury. The court distinctly remembers not only that the foreman reported the corrected verdict, but that the jurors, in chorus, affirmed the answer ‘Yes’ to question No. 6 to be correct. It seems to the court that evidence thus taken in open court before the jury has separated is of far greater value .than evidence produced by affidavits weeks later, after the jurors have separated' and after they have been informed of the effect of their answers.

“It is apparent that in securing the affidavits there was an absence of that high degree of caution which should have been exercised. Affidavits based upon interviews with jurors after their separation carry little weight unless accompanied by the most careful safeguards.”

The affidavits of the jurors, taken in connection with what occurred in the court room upon the coming in of the ver-diet, presented a situation where it was well within the province of the trial court to find whether or not the verdict as originally brought into the court room was the verdict of the jury as it was intended to be, or whether the jury intended to find plaintiff guilty of want of ordinary care. The court quite clearly and definitely had in mind the applicable principles of law. While it may appear that the rights of parties may sometimes be sacrificed to legal forms and procedure, some attention must be given to the larger question of the administration of. justice. As has been said:

“Let it once be established that verdicts solemnly made, and publicly returned into court, can be publicly attacked and set aside on the testimony of those who took part in their publication, and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate their finding. Jurors would be harassed and beset by the defeated party, in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside the verdict. If evidence thus secured could be used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation, to the destruction of frankness and freedom of discussion and conference.” 1 Hyatt, Trials, § 835; McDonald v. Pless, 238 U. S. 264, 35 Sup. Ct. 783; Holub v. Cootware, 169 Wis. 176, 170 N. W. 939.

It is considered that the trial court correctly applied the proper rule of law to the situation presented to it by the motions made in the court below. Considerations of public policy of the most weighty and convincing character require that verdicts of juries solemnly rendered, particularly as in this case after specific inquiry of the members of the jury by the trial court, should not be overturned or set aside because the legal consequences which follow the rendition of the verdict are not what the jury anticipated they would be. The affidavits as drawn quite clearly indicate a mistake, but the inquiry made by the judge in open court indicates quite the contrary.

The trial court was of the opinion that the plaintiff was guilty óf contributory negligence as a matter of law. In this view we cannot concur. Inasmuch as there is to be a new trial we shall not state or discuss the facts, but are clearly of the view that a jury issue was presented with reference to that matter.

Error is assigned here because the trial court did not in the exercise of its discretion and upon its own volition grant a new trial. Plaintiff’s attorneys did not move for a new trial, preferring to stand upon their rights under the verdict. If the plaintiff had sought a new trial in the court below it is conceivable at least that the court might have granted it. Neither side asked for a new trial. It cannot be said that the trial court committed error in failing to grant it upon its own motion. 20 Ruling Case Law, p. 225, §11, and cases cited. See Sullivan v. M., St. P. & S. S. M. R. Co. 167 Wis. 518, 167 N. W. 311.

The situation presented by the record in this case is such as leaves in the mind of this court a grave doubt as to whether or not justice has been done, even though established rules of law may have been properly and correctly applied. It may well be that this court shares the responsibility for the confusion of mind which existed on the part of the jurors in this case. While contributory negligence may be a failure on the part of one to exercise ordinary care, it is customarily thought of by persons not trained in the law in the affirmative rather than in the negative form in which it is ordinarily stated and a form of statement which has been approved many times by this court. There is a growing feeling as indicated in Berrafato v. Exner, 194 Wis. 149, 216 N. W. 165, that some of the definitions in our law of negligence are involved and confusing to persons not accustomed to deal with them. It is clear that in this case there was some confusion of mind on the part of the jurors.

It is considered that this is a .case in which a new trial should be granted as provided by sec. 251.09, Stats.

By the Court. — The judgment appealed from is reversed and cause remanded for a new trial; no costs to be taxed by either party, the appellant to pay the clerk’s fees in this court.