Christensen v. Petersen
| Citation | 198 Wis. 222,222 N.W. 231 |
| Parties | CHRISTENSEN v. PETERSEN ET AL. |
| Decision Date | 04 December 1928 |
| Court | United States State Supreme Court of Wisconsin |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Municipal Court for Racine County; E. R. Burgess, Judge. Reversed.
Action by Hans Christensen against Samuel Petersen and Frank J. Schwartz, begun April 7, 1927, to recover damages for an alleged conspiracy to defraud. From a judgment for the plaintiff entered January 20, 1928, the defendant Schwartz appealed.
Eschweiler, J., dissenting.Wilbershide, Baumblatt & Weisman, of Racine, for appellant.
Whaley & Paulsen and Guy A. Benson, all of Racine, for respondent.
Upon the record presented, the question of whether defendant Schwartz participated in any conspiracy to defraud was one for the jury to determine.
[1] The verdict rendered is, however, insufficient to warrant a judgment against defendant Schwartz. Under the five-sixths jury law, section 270.25 of the Statutes, at least ten jurors must agree upon the answers to all questions that are essential to establish the liability of the defendant Schwartz. That rule requires that at least the same ten jurors must agree as to the answers that establish the liability of defendant Schwartz and measure the amount of damages sustained by plaintiff. Will v. Chicago, M. & St. P. R. Co., 191 Wis. 247, 254, 255, 210 N. W. 717. Applying that rule to the case at bar, it means that at least ten jurors must agree in finding that defendant Schwartz conspired with defendant Petersen to defraud the plaintiff, and also in fixing the amount of damages sustained by the plaintiff because of such fraud.
[2] In rendering their verdict, each juror who agreed upon the answer to any question signed his or her name after that answer. It appears from an inspection of the verdict that ten jurors agreed to the answer finding that the defendant Schwartz conspired with the defendant Petersen to defraud the plaintiff. It also appears that only nine of the jurors that agreed upon this answer as to conspiracy concurred in the answer fixing the amount of the damages. It follows that the verdict is defective, because the facts essential to establish liability on the part of defendant Schwartz and to measure the amount of that liability were not agreed to by at least ten members of the jury.
[3] This defect in the verdict was not waived by failing to ask a poll of the jury that returned the verdict, under the rule of Bentson v. Brown, 186 Wis. 629, 637, 203 N. W. 380, 38 A. L. R....
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