Frion v. Craig
| Citation | 274 Wis. 550,80 N.W.2d 808 |
| Parties | Frank FRION, Appellant, v. Oakley CRAIG, Jr., et al., Respondents, Roy Haller et al., Interpleaded Defendants. |
| Decision Date | 05 February 1957 |
| Court | Wisconsin Supreme Court |
Frank L. Morrow, Eau Claire, for appellant.
Stafford, Pfiffner & Stafford, Chippewa Falls, for respondent and defendants.
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 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 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 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 county courtroom of the courthouse and Mrs. Solberg came in and spoke to him. She stated that she had visited at the home of one Delmar Sloop the evening before and Mr. Sloop had asked her to say 'hello' to Craig. Nothing was said in this brief conversation between Mrs. Solberg and Craig about the accident or the case being tried.
At the conclusion of questioning of Craig, plaintiff's counsel moved 'that the juror, Mrs. Solberg, be excused and that we proceed with eleven jurors'. This motion was denied and the trial proceeded.
A motion to withdraw a juror was a device resorted to in order to obtain a continuance for cause after the jury had been impaneled and the trial was in progress. Planer v. Smith, 1876, 40 Wis. 31, Annotation, 48 L.R.A. 432, and 53 Am.Jur., Trial, p. 679, sec. 966. It is seldom if ever resorted to nowadays in the practice. When such a motion is granted, a mistrial automatically results from the withdrawal of the jury, thus ending the trial. It is clear from the wording of the motion of plaintiff's counsel in the instant case that this was not the relief sought because of the express request that the trial proceed with eleven jurors. Counsel's motion should have requested a declaration of a mistrial, if counsel deemed that the interests of his client had been prejudiced by the alleged misconduct of the juror Solberg. Counsel must have known that the trial court possessed no power to excuse a juror at this stage of the trial and proceed with eleven jurors in the absence of any stipulation to such effect from opposing counsel.
When counsel's improper motion was denied, counsel interposed no further motion. Such course of action...
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