Larson v. Koller

• Decision Date: 06 February 1929
• Citation: 223 N.W. 426,198 Wis. 160
• Parties: LARSON v. KOLLER.
• Court: Wisconsin Supreme Court

198 Wis. 160

223 N.W. 426

LARSON

v.KOLLER.^a1

Supreme Court of Wisconsin.

Feb. 6, 1929.

Appeal from a judgment of the Circuit Court for La Crosse County; S. E. Smalley, Circuit Judge. Reversed.

Action by Thomas H. Larson against Joseph A. Koller. From a judgment for plaintiff, defendant appeals. Reversed and remanded.--[By Editorial Staff.]

This was an action for damages occasioned by plaintiff being injured in an automobile collision. The plaintiff recovered judgment, and defendant appeals.Schubert & Stevenson, of La Crosse, for appellant.

George H. Gordon, Law & Gordon, of La Crosse, for respondent.

CROWNHART, J.

The court is agreed that the evidence presented a case for the jury on the negligence of the defendant and the contributory negligence of the plaintiff. We do not discuss the evidence or errors assigned, other than the one concerning the effect of the verdict, as the case must go back for a new trial.

A special verdict was rendered, wherein the jury found, by a vote of ten to two, for the plaintiff as to the negligence of the defendant resulting proximately in causing the damages to the plaintiff, and assessed damages. The jury further found, by a vote of ten to two, that plaintiff was not guilty of contributory negligence. But the ten jurors who found for plaintiff on the first issue were not the same ten who found for him on the other issue, and the defendant assigns error that the verdict was insufficient to sustain the judgment.

In Dick v. Heisler, 184 Wis. 77, 198 N. W. 734, we held that the constitutional amendment and statute making the same effective, providing for verdicts by five-sixths of the jurors, had the effect only of substituting a verdict by ten jurors binding to the same extent and manner as formerly in the case of the unanimous verdict of twelve jurors. Therefore, the same ten jurors had to agree upon all facts which must concur to determine liability.

That case was followed by Stevens v. Montfort State Bank, 183 Wis. 621, 198 N. W. 600;Kosak v. Boyce, 185 Wis. 513, 201 N. W. 757;Bentson v. Brown, 186 Wis. 629, 203 N. W. 380, 38 A. L. R. 1417;Hobbs v. Nelson, 188 Wis. 108, 205 N. W. 918--in which various questions were raised and decided, but the rule in the Dick Case was repeatedly affirmed. The plaintiff here contends that in Will v. Chicago, M. & St. P. R. Co., 191 Wis. 247, 210 N. W. 717, the Dick Case, and other cases following it, were overruled. In this he is mistaken. In the Will Case it was held that wherever questions covering the liability of defendant were answered by ten jurors, although not the same ten as passed upon other questions, the verdict was sufficient to sustain a judgment for the defendant. This was so because all other questions became immaterial where the questions properly answered covered...