The only issue raised by the appellants is whether the court erred in granting Steinke’s motion for a directed verdict. The respondents contend there was a *458 waiver of the jury, the issue cannot be raised as a matter of right because the claimed error was not made the basis of a motion for a new trial, and in any event the trial court correctly granted the directed verdict.
As to the motion to direct the verdict on behalf of Steinke, there was no waiver of a jury trial. In order to constitute a stipulation waiving a jury trial, sec. 270.26, Stats.,
1
requires all parties to move without reservation for a directed verdict and the additional condition, “unless otherwise directed by the court before discharge of the jury.” The making of unreserved motions to direct the verdict does not constitute a stipulation waiving the jury unless the court accepts the stipulation as such. The court may, in its discretion, reject the effect of the stipulation and submit the issue to the jury. If the court elects not to treat the motions as amounting to a stipulation waiving the jury and submitting the case to the court for decision, the motions do not have such effect.
Huchting v. Rahn
(1922),
At the time the motion for directed verdict was made by Steinke and his insurer and decided by the trial court, it was the only motion before the court. The first motion of the appellants for a directed verdict had been denied and the plaintiff had not as yet made his motion. In deciding the Steinke motion, the court did not act as a trier of the fact. It granted the motion as a matter of law on the basis there was no credible evidence -on which the jury could find *459 Steinke causally negligent, and if the question was submitted, the jury would have to speculate to find such negligence. After the granting of this motion and on the following day, the plaintiff and the appellants, who were the remaining parties in the action, both moved for a directed verdict without reservation. The court accepted these two motions as a waiver of the jury trial. The waiver of a jury at that time would not affect the prior Steinke motion to direct a verdict which had been decided.
In order for motions for a directed verdict made without reservation to constitute a stipulation waiving a jury trial if accepted by the court, the motions of all parties to the action must be pending for decision at the same time. We cannot construe sec. 270.26, Stats., as contended by counsel, to mean that such motions can be made and disposed of seriatim and if it happens that all parties eventually have made motions for a directed verdict without reservation, a jury trial is waived upon the making of the last motion. For a criticism of sec. 270.26 as being a trap, see 31 Marquette Law Review, 172.
Prior to the adoption of sec. 270.26, Stats., it was not the rule in Wisconsin that even pending motions to direct a verdict constituted a waiver of the jury trial.
Thompson v. Brennan
(1899),
*460
The second question raised by the respondents is whether the appellants can raise the error complained of on appeal as a matter of right since they did not preserve the error by a motion for a new trial. For many years prior to
Wells v. Dairyland Mut. Ins. Co.
(1957),
. . no error of the court should be reviewable as a matter of right on appeal without first moving in the trial court for a new trial bottomed on such error, if the error is of a category that a trial court could correct [it] by granting a new trial.”
The
Wells Case
involved a jury trial and a duplicitous verdict. All the cases relying on
Wells
have been jury trials, none of which has, however, involved an assigned error in directing a verdict. See
Frion v. Craig
(1957),
The question now presented is: Does the rule of the
Wells Case
apply to an assigned error committed by the court in directing a verdict in a jury trial?
Plankinton v. Gorman
(1896),
The appellants contend the trial court has no power to grant a new trial excepting under sec. 270.49 (1), Stats., which is limited to setting aside a verdict on specified grounds, and is not applicable here. We do not consider sec. 270.49 (1) so restrictive. The power to grant a new trial was a necessary incident of a jury trial at common law.
Malinowski v. Moss
(1928),
We reserve for future decision whether the doctrine of the Wells Case should be extended to errors committed by a court in a trial to the court as contended by the respond *462 ents and decide only that Wells controls the issue as presented here and the appellants cannot, as a matter of right, raise the question of error in directing the verdict. We have reviewed the record and testimony and decline to exercise our discretionary power as we find no miscarriage of justice.
By the Court. — Judgment affirmed.
Notes
“270.26 Motion for directed verdict waives jury trial. Whenever in a jury trial all the parties, without reservation, move the court to direct a verdict, such motions, unless otherwise directed by the court before discharge of the jury, constitute a stipulation waiving a jury trial and submitting the entire case to the court for decision.”