Frion v. Craig

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtCURRIE
Citation274 Wis. 550,80 N.W.2d 808
Decision Date05 February 1957
PartiesFrank FRION, Appellant, v. Oakley CRAIG, Jr., et al., Respondents, Roy Haller et al., Interpleaded Defendants.

Page 808

80 N.W.2d 808
274 Wis. 550
Frank FRION, Appellant,
v.
Oakley CRAIG, Jr., et al., Respondents,
Roy Haller et al., Interpleaded Defendants.
Supreme Court of Wisconsin.
Feb. 5, 1957.

Frank L. Morrow, Eau Claire, for appellant.

Stafford, Pfiffner & Stafford, Chippewa Falls, for respondent and defendants.

CURRIE, Justice.

On this appeal the plaintiff Frion seeks a new trial on the following grounds:

(1) The jury's verdict was the result of passion and prejudice as evidenced by the fact that the jury fixed the amount of plaintiff's damages for his personal injury at an alleged inadequate figure.

(2) The alleged misconduct of a juror.

(3) The alleged misconduct of defendant's counsel.

(4) The participation of the trial court in the questioning of witnesses to an extent that is alleged to have indicated partiality.

In view of the nature of the above assignments of error the facts surrounding the occurrence

Page 810

of the accident are of no significance. The most hotly contested point in the trial was whether Frion was crossing the street at a point other than within the limits of the sidewalk lines extended into the intersection. There was a sharp conflict of the testimony on this point. The jury, acting under proper instructions from the trial court, resolved this issue against Frion by finding him causally negligent as to failure to yield the right of way.

In answering the questions of the verdict with respect to Frion's damages, the jury awarded $6,000 for loss of earnings[274 Wis. 553] and $2,000 for personal injury. In addition the court answered the questions in the verdict as to the amount of Frion's medical and hospital expense, finding the same to be $2,690.70. Plaintiff's counsel attacks the $2,000 figure awarded for personal injury, contending that such finding indicates passion and prejudice on the part of the jury.

At the time of the accident Frion was an able-bodied man sixty-eight years of age who had been employed by the paper company at Cornell for the preceding 36 years. The nature of his injury sustained as a result of the accident was a broken left leg. There was a compound, comminuted fracture of the tibia, and a simple fracture of the fibula. He remained in the hospital for five months and when released from there he first walked with crutches and later with a cane. Later he was returned to the hospital for physiotherapy treatments during the period of May 31, 1955 to July 14, 1955. A good union with proper alignment has been obtained of the fractured bones. He had not returned to work at the time of trial, which was held approximately a year after the accident. The attending physician testified that Frion would probably be able to return to work within the year ensuing the date of trial, while another doctor expressed a doubt that Frion would ever be able to resume work. The medical testimony was in sharp dispute as to the amount of shortening of the injured leg. One doctor stated it amounted to but one quarter of an inch, while another testified there was an 'apparent' shortening of two inches. There was also medical testimony that Frion was suffering from arterio-sclerosis (hardening of the arteries) which had impaired blood circulation at the ankle, and that it was this rather than the fracture which was disabling Frion at the time of trial.

While $2,000 seems a low amount to award for Frion's personal injury we cannot hold that it is so extreme as to indicate passion and prejudice on the part of the jury. No [274 Wis. 554] attack is made on the $6,000 found as damages for loss of earnings, and we deem this latter finding to be material on the issue of passion and prejudice.

The trial consumed three days. On the second day plaintiff's counsel reported to the court that Mrs. Solberg, one of the jurors, had held a private conversation with defendant Craig. In the absence of the jury, the trial judge called Craig to the stand and he was questioned by both opposing counsel and also by the court. Such questioning developed the following facts: About 1:30 p. m. of the previous day Craig had been seated in the...

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9 practice notes
  • Lobermeier v. General Telephone Co. of Wisconsin, No. 82-240
    • United States
    • United States State Supreme Court of Wisconsin
    • August 14, 1984
    ...with less than Page 470 a numerically complete jury. State ex rel. Polk v. Johnson, 47 Wis.2d 207, 177 N.W.2d 122 (1970); Frion v. Craig, 274 Wis. 550, 554, 80 N.W.2d 808 Having had, at this juncture, the absolute right to a mistrial, the telephone company, the plaintiff claims, obviously e......
  • Nimmer v. Purtell, No. 496
    • United States
    • United States State Supreme Court of Wisconsin
    • June 16, 1975
    ...none was made a matter of record. The plaintiff did not move for a mistrial at that point and as this court said in Frion v. Craig (1957), 274 Wis. 550, 555, 80 N.W.2d 808: 'Such course of action is open to the obvious interpretation that he preferred to continue with the trial and take his......
  • Peterson v. Wingertsman
    • United States
    • United States State Supreme Court of Wisconsin
    • October 31, 1961
    ...on Wells have been jury trials, none of which has, however, involved an assigned error in directing a verdict. See: Frion v. Crary, 1957, 274 Wis. 550, 80 N.W.2d 808 (court questioning witness); Bronk v. Mijal, 1957, 275 Wis. 194, 81 N.W.2d 481 (question in verdict); Winston v. Weiner, 1957......
  • Kink v. Combs
    • United States
    • United States State Supreme Court of Wisconsin
    • June 25, 1965
    ...a timely motion can only be construed as an election to rely on the possibility of a favorable jury verdict. In Frion v. Craig (1957), 274 Wis. 550, 555, 80 N.W.2d 808, 811, where the conduct of a juror was in question, we stated: [28 Wis.2d 73] 'Such course of action is open to the obvious......
  • Request a trial to view additional results
9 cases
  • Lobermeier v. General Telephone Co. of Wisconsin, No. 82-240
    • United States
    • United States State Supreme Court of Wisconsin
    • August 14, 1984
    ...with less than Page 470 a numerically complete jury. State ex rel. Polk v. Johnson, 47 Wis.2d 207, 177 N.W.2d 122 (1970); Frion v. Craig, 274 Wis. 550, 554, 80 N.W.2d 808 Having had, at this juncture, the absolute right to a mistrial, the telephone company, the plaintiff claims, obviously e......
  • Nimmer v. Purtell, No. 496
    • United States
    • United States State Supreme Court of Wisconsin
    • June 16, 1975
    ...none was made a matter of record. The plaintiff did not move for a mistrial at that point and as this court said in Frion v. Craig (1957), 274 Wis. 550, 555, 80 N.W.2d 808: 'Such course of action is open to the obvious interpretation that he preferred to continue with the trial and take his......
  • Peterson v. Wingertsman
    • United States
    • United States State Supreme Court of Wisconsin
    • October 31, 1961
    ...on Wells have been jury trials, none of which has, however, involved an assigned error in directing a verdict. See: Frion v. Crary, 1957, 274 Wis. 550, 80 N.W.2d 808 (court questioning witness); Bronk v. Mijal, 1957, 275 Wis. 194, 81 N.W.2d 481 (question in verdict); Winston v. Weiner, 1957......
  • Kink v. Combs
    • United States
    • United States State Supreme Court of Wisconsin
    • June 25, 1965
    ...a timely motion can only be construed as an election to rely on the possibility of a favorable jury verdict. In Frion v. Craig (1957), 274 Wis. 550, 555, 80 N.W.2d 808, 811, where the conduct of a juror was in question, we stated: [28 Wis.2d 73] 'Such course of action is open to the obvious......
  • Request a trial to view additional results

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