Krueger v. Winters

• Decision Date: 22 December 1967
• Citation: 155 N.W.2d 1,37 Wis.2d 204
• Parties: William KRUEGER, Appellant, v. George WINTERS et al., Respondents.
• Court: Wisconsin Supreme Court

Page 1

155 N.W.2d 1

37 Wis.2d 204

William KRUEGER, Appellant, v. George WINTERS et al., Respondents.

Supreme Court of Wisconsin.

Dec. 22, 1967.

Schmus & Panosian, West Allis, Kersten & McKinnon, George P. Kersten, Milwaukee, of counsel, for appellant.

Kivett & Kasdorf, John M. Swietlik, Milwaukee, of counsel, for respondents.

BEILFUSS, Justice.

The issue before this court on appeal is: Should the plaintiff be allowed to disclaim or waive an item of damages in the special verdict thereby expunging the effect of a dissent to that item so as to cure an otherwise defective verdict?

The pertinent statute is sec. 270.25(1), which provides:

'Verdicts; five-sixths; directed. (1) A verdict agreed to by five-sixths of the jurors shall be the verdict of the jury. If more than one question must be answered to arrive at a verdict on the same cause of action, the same five-sixths of the jurors must agree on all such questions.'

This court has construed this section to mean the same five-sixths of the jurors 'must agree upon all questions essential to support the judgment entered upon it.' Scipior v. Shea (1948), 252 Wis. 185, 190, 31 N.W.2d 199, 202. Unquestionably then, unless the trial court could find the amount of medical expenses as a matter of law, or unless it could grant plaintiff's motion to dismiss the claim for medical expenses the verdict was invalid under sec. 270.25(1), Stats.

The trial judge refused to find the amount of medical expenses as a matter of law for two reasons. First, he felt that he would have to find the same amount as the jury found on the issue and that it would be improper for him to substitute his finding of $606 for the jury's finding of $606. Second, the trial court was of the opinion '* * * that there was a substantial issue of fact to the necessity for all of the medical expenses encompassed in this lawsuit.'

If the trial court could have found the amount of medical expenses as a matter of law, there is no reason why he could not substitute his answer for that of the jury and rid the verdict of a dissent albeit his answer would be the same as that given by the jury. But in this case the trial court rightfully concluded he could not determine the amount of medical expenses as a matter of law because a substantial issue of fact was involved. This court is bound by that determination since the transcript of testimony has not been made a part of the record on this appeal.

In denying the motion to dismiss on the merits, or waive the amount of medical expenses, the trial court relied on sec. 270.24, Stats. That section provides that the plaintiff has no right to submit to a nonsuit after argument to the jury is concluded or waived. ¹ The purpose of sec. 270.24 is as stated in the revisor's note to the section:

"* * * The plaintiff and defendant ought to stand on even terms, and it is unnecessary to preserve the plaintiff from inequitable surprises that he should have a privilege of attempting another trial which the defendant does not have, if the charge of the court shall prove unfavorable." ²

The same reasoning applies, and with greater force, when the verdict has been returned. Certainly the plaintiff does not have the option to reject the verdict by submitting to a nonsuit by his own motion and later start a new action. However, plaintiff's motion in this case was not for nonsuit. Rather, it was stated to be a 'waiver' of the medical expenses. On his motion for rehearing, plaintiff attempted to make this clear by using the language 'dismiss on the merits all claims for medical expenses.'

This court distinguished between a nonsuit and a dismissal on the merits in Klapinski v. Polewski (1963), 19 Wis.2d 124, 128, 119 N.W.2d 424, 426:

'* * * The court granted the defendant's motion for nonsuit and went on to dismiss the action 'upon the merits.' This presents the question as to whether a judgment following the granting of a nonsuit is a bar to another action upon the same claim. In Strehlau v. John Schroeder Lumber Co. (1913), 152 Wis. 589, 591, 142 N.W. 120, 48 L.R.A.,N.S.., 464, this court said:

"It is familiar law that a judgment of nonsuit, voluntary or involuntary, is not a bar to another action upon the same cause. Gummer v. (Trustees of Village of) Omro, 50 Wis. 247, 6 N.W. 885; Gratz v. Parker, 137 Wis. 104, 118 N.W. 637.'

'In 2 Black, Judgments (2d ed.), sec. 699, p. 1051, the author states:

"It is a settled and inflexible rule that a judgment of nonsuit is not a judgment upon the merits, and therefore it is no bar to another suit upon the same cause of action.'

'See also Rohr v. Chicago, N.S. & M.R.R. (1922), 179 Wis. 106, 109, 190 N.W. 827.

'From the foregoing we conclude that a motion for nonsuit does not warrant a dismissal upon the merits. If the motion had been for dismissal instead of for nonsuit, the action could have been disposed of upon the merits.'

A dismissal on the merits would constitute a bar and would prevent the plaintiff from ever again asserting his claim for medical expenses against this defendant. The matter from that time on would be res judicata. If the plaintiff is willing to forego this amount entirely, the defendant cannot be heard to complain.

The respondent argues that there is no statutory or case law authority for allowing such a motion. This is correct. However, there is no authority which prevents the granting of such a motion even though it effects only a part of the cause of action. Respondent contends that it is fundamental that a verdict must be treated as a whole, and that it cannot be accepted in a piecemeal fashion. Either it is valid, or it is void. This proposition is not in keeping with the decided cases. This court has on several occasions approved a trial court's determination that a question in a verdict should be answered as a matter of law, thereby curing an otherwise defective verdict. An example is Wendel v. Little (1961), 15 Wis.2d 52, 112 N.W.2d 172. In Wendel one juror dissented to the comparison of negligence question and two different jurors dissented to two separate items of damages. This court sustained the trial court's conclusion that the plaintiff had been free from contributory negligence as a matter of law. The trial court's procedure of striking this question and the dissent thereto as surplusage, and thereby curing the verdict, was approved by this court:

'This court has held it permissible to cure an...