Christensen v. Petersen

• Decision Date: 05 March 1929
• Citation: 198 Wis. 222,223 N.W. 839
• Parties: CHRISTENSEN v. PETERSEN ET AL.
• Court: Wisconsin Supreme Court

198 Wis. 222

223 N.W. 839

CHRISTENSEN

v.PETERSEN ET AL.

Supreme Court of Wisconsin.

March 5, 1929.

Appeal from a judgment of the Municipal Court for Racine County; E. B. Burgess, Judge.

On motion for rehearing. Motion denied.

For former opinion, see 222 N. W. 231.--[By Editorial Staff.]Wilbershide, Baumblatt & Weisman, of Racine, for appellant.

Whaley & Paulsen and Guy A. Benson, all of Racine, for respondent.

STEVENS, J.

[1] 1. This case was reversed and remanded for a new trial on the ground that only nine jurors had agreed in finding the facts essential to establish plaintiff's right to recover against the appellant Schwartz. The appellant, on this motion, asks the court to abrogate the rule stated in Larson v. Koller (Wis.) 223 N. W. 426, and cases there cited, and to hold that the same ten jurors need not agree to all answers that are essential to establish appellant's liability. It is plaintiff's contention that the special verdict is sufficient to warrant the entry of a judgment against the appellant because all questions that establish appellant's liability are answered by ten jurors, although the same ten did not agree as to the answers made to each of such questions.

Under the Constitution as it existed prior to the amendment permitting the five-sixths verdict, all questions essential to establish appellant's liability would have to be found by the unanimous verdict of the jury. The only change wrought by the amendment was to permit the verdict of five-sixths of the jury to be received in place of the unanimous verdict. Otherwise the rights of the parties litigant were not changed by this amendment.

The test by which to determine whether a judgment may be entered, where there is a disagreement among the members of the jury as to their answers to the questions in a special verdict, is to apply the rule which would have been applied if the case had been submitted on a general verdict. In this case the jury could not have rendered a general verdict against the appellant unless at least ten members of the jury had agreed, not only that the appellant conspired to defraud the plaintiff, but also as to the measure of plaintiff's damages. Had the case been submitted on a general verdict, the jury would not have rendered a verdict, because ten members of the jury did not agree upon the facts essential to establish appellant's liability. The fact that the case is submitted on a special verdict does not deprive the appellant of his right to have all facts essential to fix his liability determined by the same ten jurors.

The cases relied upon by appellant to sustain his contention are like those cited below, where appellate courts have remanded cases for a retrial of a single issue, like the assessment of damages, in which the right to recover damages had been clearly established. Rogers v. Lurye Furniture Co., 193 Wis. 496, 503, 211 N. W. 782, 215 N. W. 457;Krutzka v. Milwaukee Club Co., 195 Wis. 5, 11, 216 N. W. 491;Knutson v. Stangl (Wis.) 220 N. W. 375, 377. These cases are distinguished from the one at bar by the fact that control over the verdict after it is given was as much a part of trial by jury that is guaranteed by the Constitution as is the giving of the verdict itself. That control over the verdict was discussed in a recent case, where it is said that “the right that is preserved by this constitutional provision is the right to trial by jury as it existed when the constitution was adopted.” Campbell v. Sutliff, 193 Wis. 370, 375, 214 N. W. 374, 376 (53 A. L. R. 771). When the Constitution was adopted, one of the essential elements of the jury...