Zimmerman Ex Rel. Zimmerman v. Witte Transportation Co.
259 N.W.2d 260
Minn.
1977
Check Treatment

*1 agreement performance had executed their sales and at a impossible. Defendant plaintiff operating time when busi- bases this claim on plaintiff the fact that plaintiff gave ness. When defendant his reported irregularities certain business $4,007.69 note deficit part Massey-Ferguson, defendant Balbach, “750” combine sold obvious resulting in the termination of the fran- defendant, plaintiff that as between reporting chise. The irregularities, of these plaintiff keep any profit was entitled to such as “floor planning” the Hutchinson made from the sale of trade-in. This is combine, was probably justified may by conceded defendant in his statement of appropriate have been the thing to do. In facts: “Under the terms and conditions of event, if there was by plain- a breach agreement plaintiff tiff, it plaintiff’s occurred after right to the keep any profit would be entitled to made used combines had vested. The trial court (Balbach from the sale of the trade-in com- so indicated in these words: bine).” Considering the plaintiff fact that “Those already combines had been sold business, operating was then the used Massey-Harris before came down [sic] combine taken in trade him had to be there and cancelled the contract.” his, right and defendant had no to sell it. Affirmed. fact, such a sale defendant would preclude plaintiff keeping profit. from WAHL, J., not having been a member of We hold that the trial court was correct in this court at the time submission, finding that defendant converted the two took no in the consideration or decision used combines. of this case. argues Defendant that the trial court did plaintiff not find that was the owner of the

two used combines. The trial how-

ever, did make the statement con-

cerning ownership:

“Well, strictly speaking, I don’t think

you say could either one of them owned

them in a strict sense because there was something owing to Massey-Ferguson on ZIMMERMAN, Patrice Marie Mark them, but as between plaintiff Zimmerman, Her Father and Natural the defendant there’s no doubt Guardian, Zimmerman, and Mark plaintiff Court’s mind that had the * * Himself, Appellants, right to sell those only realistic conclusion that can be drawn from this statement is plaintiff WITTE TRANSPORTATION COMPA- right ownership, had some those NY, al., Respondents. et rights paramount superior No. 46734. defendant, those of and that plaintiff had a right to sell the combines in question. Supreme Court of Minnesota. plaintiff right If had the sell the Oct. 1977. property, right he had the possession. possession, Unless he could deliver right

to sell would be meaningless. In order to conversion,

maintain an action plaintiff only

need special have a limited title or entitling possession.

interest him to 18 Am.

Jur.2d, Conversion, § plaintiff

Defendant asserts that breached

the contract between the parties and made *2 Murphy Langford

Streater Brosnahan & Gernander, Brosnahan, Roger P. and Kent Gernander, Winona, appellants. A. Klampe Brown Bins & and Frederic N. Rochester, Brown, respondents. TODD, Heard before MacLAUGHLIN YETKA, JJ., decid- and considered and ed the court en banc.

TODD, Justice. personal

Patrice Zimmerman sustained injuries bicycle when she fell from her onto highway she was struck public where a would be damages. entitled recover Transportation truck Witte Com- owned Each of approached pany. jury found the driver to be free the day after the trial and informed the negligence but awarded dam- court of their assumptions on the issue of ages. Following newspaper report damages. Counsel for were con- *3 any damages Patrice would not recover for by persons tacted who had talked to the injuries, jurors approached the her two of jurors and who jurors indicated that the judge regarding the trial this result. After had by been confused the instructions of interviewing record, jurors the off the the the had misunderstood the effect of denied for plaintiffs’ court motion verdict, and had been the under im- hearing. The court denied Schwartz also pression their verdict would entitle a new or judgment for not- to recover from defendants. withstanding the verdict. We affirm. presented Plaintiffs’ counsel the court with an affidavit setting forth the information accident, At the time of the Patrice Zim- he requested had received and a Schwartz merman, old, riding then 7 years was hearing.1 The trial court denied the re- bicycle nearby from her home to a church quest grounds on the that the situation did to attend summer catechism classes. She jury not constitute misconduct. The court accompanied sisters, her two older questioned who then 9 10 old. years and The absence of counsel and without making a highway roadway was a two-lane with a record. The court told counsel it surface, believed blacktop 24 feet inches wide and opinion adamant in their by a painted divided centerline. On the that the driver negligent. east side road a shoulder of rock, pebbles, crushed extending dirt The presented issues are for to 5 from blacktop, feet sloping appeal: consideration on grassy extending area another 4 to 5 feet. (1) Whether the court in deny- erred riding As Patrice and her sisters were sin- ing plaintiffs’ request a Schwartz hear- gle the right-hand edge file on road ing. lead, surface, with Patrice in the be- (2) Whether the defendant truck driver overtaking came aware of a truck them. was negligent as a matter of law. stop They left road surface to gravel girls shoulder. The two older (3) Whether the trial court erred stopped bicycles about 3 to feet from jury. instructions to the Patrice, however, the road surface. either granting The of a Schwartz hear lost her balance or turned the wheel of her ing generally is a matter of discretion for truck, bicycle toward the fell toward the purpose trial court. Its is avoid surface, road struck rear harassment of provide and to a rec wheels of defendants’ truck. was se- She where, ord on in cases after the jury verely injured. verdict, renders the the losing party be jury case was submitted to the on comes aware of facts which indicate the special interrogatories. The jury awarded possibility jury misconduct. theAt first $100,000 damages $10,- to Patrice and misconduct, suspicion of attorney However, her 852.90 to father. the losing party bring should the matter to nor determined neither Patrice the attention of the trial court. If this negligent. truck driver was procedure followed, is not may issue verdict,

After the had rendered its raised for first time in a motion for a jurors expressed Dirks, their belief that new Tupper 445, trial. rendering (1972). assumed Patrice 193 N.W.2d 800 Neither an attor- proper receiving presenting method 1. This is with re- information spect to a question initiate In that case the agent Supreme Court said ney nor concerning possible miscon there hearing should be a on that kind of Co., Minneapolis Gas Olberg v. duct. question judge. before the trial In the Minn. bar, plaintiffs’ case at claim that a attorney for an improper, It is not should be had because initiative who take the question was confused and misunderstood telephoning approaching the effect of the verdict. That is not a constitute facts which believe report ground for a hearing.” Citing 344, 191 N.W.2d misconduct. quoting Kosmalski, from Nebben v. action, to warrant If the facts 239 N.W.2d 234 as juror who may summon the trial (Italics controlling. supplied.) permit, alleges jury misconduct and Counsel for in his affidavit examination to be safeguards, an proper *4 support for a hearing presence of counsel for all conducted part: stated in judge. By the trial interested forewoman, that time “Since a record can be adhering procedure, to this perhaps jurors, have contacted the to this court on presentation preserved county and the attorney the cor several if doubt exists about error; ruling. concerning occasions of trial court’s rectness Co., Minneapolis thought Bus have indicated v. Suburban that 325, 328, 301, 303 Minn. 104 N.W.2d 258 the truck driver was and would trial (1960). Nothing prevent have found him so been aware ordering hearing upon based court from plain- this was in order for the hearsay counsel or affi an oral assertion (Italics supplied.) tiffs to recover." Moreover, trial courts should be lib davit. Obviously, put jur it is desirable to hearing. Olberg granting such a v. eral in concerning possible ors’ miscon statements Co., 334, 343, 191 Minn. Minneapolis Gas 291 duct on the record and this should be done. 418, 424. N.W.2d case, However, judge in this the trial procedures were not followed in These unequivocal his recollection of state court, and a instant case to him ments made concern presence not made in the record was ing opinion that the truck driver was concerning the statements of the counsel negligent. single This not fact distin However, judge did make jurors. guishes present case from our decision following statement in his memoran- Ramfjord Sullivan, 238, v. 301 Minn. 222 denying plain- order accompanying the dum N.W.2d 541 which involved a situa motions: tiffs’ where, tion after the returned a ver two of the appears that at least “It containing error, dict a clerical the trial thought court further instructed the without to re agreed to would entitle presence of either without Each of these came cover. making a record and then ordered the Upon so day the next stated. Court disapprov to retire to correct the error. were adamant questioning, both jur of the trial court’s examination of the defendant’s driv opinion that in their misconduct, concerning possible without virtue of the negligent. By er was presence attorneys or without hearing now seek a foregoing plaintiffs appropriate pro an record of the Minneapolis v. pursuant to Schwartz Sub (301 252, ceedings, we stated Minn. 222 329], 104 Company Bus Minn. urban [258 550): It does not NW2d 301. “While there is no indication whatever is a case where such a Court that the learned trial court in this case appropriate. everything did not recite to counsel he (ibid) a case where there was involved recalled, juror. of a the record does indicate that a alleged misconduct 264 exactly forget juror’s can what remarks

busy judge will be received to itself transpired. as the trial court For sought the verdict where facts stated in this case: inhere in g., shown the verdict itself. E. right. Inc., All we v. Stokely-Van Camp,

‘“THE Before Weber COURT: 274 482, is a get point, my memory 491, 540, off that now Minn. 144 N.W.2d 545 just hazy place. little as to what took This includes attempts show that Mun- you, think I Mr. discussed evidence, misunderstood I don’t ger, day length. the next some legal charge or conse jury came in for fur- recall whether the quences findings. their factual v. Bauer came in ther instructions whether Rummer, 488, 490, 244 Minn. 70 N.W.2d (Italics supplied.)’ with their Answers. 273, (1955); Dunnell, ed.) Dig. (3 14 language “We reiterate the therefore 7109; C.J.S., New Trial 169. Clerical § § of the Booth case: errors, however, exception are an to this “ ‘ * * * open- The mischief lies in Kummer, 488, 491, v. rule. Bauer ing the door to misconstruction 275; 273, Pye, 70 N.W.2d v. Paul actu- faulty recollection what the court (1916); N.W. 1070 8 Wigmore, Evi said, ally the record uncertain as leaving 2355; Rev.) C.J.S., (McNaughton dence § v. scope remarks.’ [Booth Trial, New 169m. The standards for § re 79, 87, Spindler, 261 Minn. lief from clerical are set errors forth (1961).]” Kummer, Bauer *5 hand, the the 275: In case N.W.2d confused, judge was not nor is, however, excep- “There a so-called jur memory hazy, exactly about what the rule, tion to the excep- above which is an on of jury had related to him the issue only appearance in since tion it involves essence, jurors were In the misconduct. only impeachment an of the paper record- seeking impeach to their own verdict. This the of verdict and not of the actual not constitute clerical error which can does to jurors verdict which the agreed in through hearing. a be corrected their deliberations. This exception per- See, Hoskins, State v. the use mits of affidavits to show the (1972); Stokely-Van Weber v. N.W.2d true verdict for the limited purpose of Inc., Camp, proving that it correctly entered Kummer, (1966); Bauer v. upon the paper written filed with the We thus hold that the words, In court. other affidavits of the denying court did not commit error in jurors may that, be received show aby motion for a plaintiffs’ error jury, clerical of the the verdict re- Further, reviewed the record of we have turned in court was not the verdict unan- re proceedings plaintiffs’ find imously agreed upon by them. maining allegations error to be without sound public policy “A demands that a merit. protected only verdict from cleri- Affirmed. in cal error its recordation but also from vacate, whereby sought attacks YETKA, (dissenting). Justice change, explain or the actual on I dissent. not believe do that grounds which in inhere room required to a trial rely counsel should be on deliberations which led to its rendition. during of what judge’s recollection occurred A line all distinct must at times be drawn jurors during with or the court’s discussion an impeachment between of the written subsequent to trial. record of the verdict and an attempted argue presence impeachment Plaintiffs of clerical of the verdict itself. Un- jury’s Generally, in the verdict. after told mischief if error would result the latter discharged, permitted. has been no affidavit were ever Great caution must juror person concerning or a third therefore be in granting exercised relief quickly questions shield lest become a and returned for clerical error dealing upon liability. jurors an attack with to conceal were behind which that, having confused answered Whether motion the verdict itself. verdict, damage questions, they were under or in the alternative change a trial, impression a new calls that it did not matter grant how vacate it they liability questions; from clerical error in answered the relief merely for writing, consti- verdict to reducing the questions “The were all answered nega- attempt tutes an tively returned with a question of fact.” primarily itself is minutes; verdict in few very impression they under for a of his support had awarded a verdict in favor of the hearing, attorney supplied the plaintiffs’ damages in the amount following affidavit: and that it when only read in Brosnahan, being duly “R. first P. paper contrary oath, he is one of the says sworn on mistake; learned of their the above attorneys for the forewoman, time the “Since that and makes entitled matter have contacted perhaps jurors, plaintiffs’ support affidavit court and on county several irregulari- to determine error; concerning occasions deliberation and jury’s ties thought have indicated verdict; impeachment of the the truck driver spoken contacted has not nor “Affiant have him so had been found aware or alter- directly plain- this was in order for case; this nate who sat on tiffs to recover. people contacted by “Affiant has been “Further affiant saith not. who and relates have talked R. P. Brosnahan” following on information and belief: has indi- “The forewoman Based enunciated stan- *6 other members of the cated she and dards, that most of con- apparent in- jury court’s not understand did alleged would not duct in the affidavit con- special ver- regard with structions a verdict. grounds stitute to For regard to the element of dict with and part, allegations the most concern mis- jury deliberated for negligence; jury understandings about instructions they after had deliberat- some legal hours misunderstandings about the con- hours, being it after 10:00 ed six almost sequences of verdict. Neither m., tired and confused as to p. they were verdict. grounds impeaching a The are for instructions; points that at several however, “that the alleges, final sentence cer- they answer requested they thought jurors have indicated that concerning their delibera- questions tain would negligent truck driver have questions advised their tions and were they him so been aware this found would pointed too order for the to re- recollections; own rely have on their might interpreted cover.” This be one of hours of deliberation the that after six hand, might ways. On the one indi- jury whether inquired court the driver was negli- cate the decided whether they home or felt go wished to special gent but to so indicate on failed night. a verdict that form; could reach verdict would be a clerical error. this time; for The asked additional hand, language the same On room, at which went back indicating might be read as decided questions special point none of the merely the driver but had been answered. legal consequences misunderstood the grounds finding; would not be for questions re- this jurors turned “The impeaching verdict. damages and resolved them lating to the trial court did not Unfortunately, so that the attorneys for both hearing. grant a Schwartz The court would have a record which could jurors; neither did examine two the propriety of .determine a motion for a at attorneys present the time record was made of the proceedings. and no Instead, merely the trial court denied the SCOTT, Justice (dissenting). hearing along with I concur the dissent by Mr. Justice result, post-trial motions. As a the other Yetka. no record to review the decision on there is court appeal. appears have WAHL, J., having not been a member of grounds misapprehended for Schwartz this at court the time of the argument hearing. One of the purposes of a submission, took no in the considera- provide is to forum for tion or decision of this case. possible grounds impeaching review in a manner consistent with judicial safeguards doing, and in pro- so reviewing

vide record on grant

decision. The decision to the hearing solely

should not be based on whether the

affidavit taken justify alone would a deci- Rather,

sion on the merits. the decision be allegations based on whether the justification of the affidavit raise sufficient Floyd BRIGGS, Respondent, grounds inquiry possible for further into impeachment By of the verdict. necessity, requirement this must liberally con- McKEE, INC., al., K. W. et Relators. strued. believe that in the instant case No. 46572. trial court abused its discretion in not attorneys permitting present Supreme Court of Minnesota. questioning and a verba- Oct. proceedings. tim record of It it was incumbent on the trial conduct more than preliminary, sua into the sponte inquiry substance of the

charges.

This court has indicated that *7 counsel required to rely

on a court’s recollection of his discussion Ramfjord Sullivan, jury.

with the this court

dealt with a situation where re- containing

turned a verdict a clerical error. attorney being present,

Without either record,

without the jury

further instructed and ordered it

to retire to We correct error. reversed

and remanded for a new rea- out majority opinion.

sons set

Therefore, presented in the situation

here, it was incumbent trial court at reporter

least to call in a court to make a of his jur-

record conferences with