Malinowski v. Moss

• Decision Date: 18 June 1928
• Citation: 196 Wis. 292,220 N.W. 197
• Parties: MALINOWSKI v. MOSS ET AL. (TWO CASES). SHOTYSK v. MOSS ET AL. (TWO CASES).
• Court: Wisconsin Supreme Court

196 Wis. 292

220 N.W. 197

MALINOWSKI

v.MOSS ET AL. (TWO CASES).

SHOTYSK

v.MOSS ET AL. (TWO CASES).

Supreme Court of Wisconsin.

June 18, 1928.

Appeal from three judgments of the Circuit Court for Fond du Lac County; C. A. Fowler, Circuit Judge.

Actions by Nicholas Malinowski, Joseph Malinowski, and Peter Shotysk against James Moss and another. From adverse judgments, defendants appeal. Reversed, with directions.--[By Editorial Staff.]

Actions begun in the municipal court for Fond du Lac county on June 25, 1927; judgments in the municipal court August 4, 1927, and on appeal in the circuit court on October 7, 1927.

Three actions tried together, for damages for personal injuries and injuries to property, sustained in an automobile accident.

The collision took place on state trunk highway No. 55, a couple of miles out of the city of Fond du Lac. The plaintiffs were the occupants of a Ford car being driven by Joseph Malinowski. Nicholas Malinowski, father of Joseph, was the owner of the car, and Peter Shotysk was a guest of the Malinowskis. The defendant Moss was the owner of an Overland car, which car was being driven by one Miller under the direction and consent of Moss; Moss being present with Miller in the car. The defendant General Casualty Company was the insurer of the liability of the defendant Moss.

The highway was concrete, 16 to 18 feet wide, with a black line in the center. The Moss car was going west, and overtook a Nash car going in the same direction. The Nash car was going about 25 miles an hour when Miller undertook to pass the Nash car, and in doing so he turned sharply to the left and over the center of the black line. A line of automobiles was approaching from the west; the first car being occupied by one Abrahams. Abrahams observed the action of Miller in time to turn his car to the right and narrowly escape collision. The Malinowski car was following the Abrahams car a short distance behind, and on its right side of the road. The Moss car struck the Malinowski car with its left front wheel and fender, and tipped the Malinowski car over, with the occupants underneath. The Moss car was traveling 30 to 35 miles an hour at the time. Such are the facts which the jury were entitled to find under the evidence.

A special verdict was submitted to the jury in each case. The defendant counterclaimed for damages to his car. The jury found: (a) That the defendant was negligent in passing to the left of the center of the traveled portion of the highway; (b) in respect to speed; (c) in respect to controlling his car, and that the defendant failed to use ordinary care, which want of ordinary care was the proximate cause of the collision. They found that the plaintiffs were not guilty of want of ordinary care, and that Miller was driving defendant's car as his agent.

On the counterclaim, the jury found all questions in favor of the plaintiffs. Damages were assessed in each action. Judgment was entered in each case according to the verdict of the jury. The defendants appealed to the circuit court. The circuit court reduced the damages in the Nicholas Malinowski case by $75, and, as so reduced, affirmed the judgment in that case and in the other two cases. The defendants appeal and assign as errors: The circuit court erred in denying new trial in the circuit court; the municipal court erred in refusing to pass on motions after verdict; the circuit court erred in refusing to hold that record showed contributory negligence; the circuit court erred in refusing to order a new trial, unless plaintiff would elect to take least sum a fair-minded jury might award; and the circuit court erred in refusing new trial in spite of errors committed by trial court, and erred in giving verdict in municipal court the weight of a constitutional jury sustained by the trial court.

Richmond, Jackman, Wilkie & Toebaas, of Madison, for appellants.

T. L. Doyle, of Fond du Lac, for respondents.

CROWNHART, J.

The trial court refused to entertain a motion for a new trial after verdict and judgment, on the ground that he had no jurisdiction to do so under the statute creating the court, chapter 244, Laws of 1921. This statute was before this court in La Bowe v. Balthazor, 180 Wis. 419, 193 N. W. 244, 32 A. L. R. 862, where the jury fee was held to be a violation of the constitutional guaranty of jury trial. The statute was thereafter amended, chapter 187, Laws of 1923, to provide for a constitutional jury. The appellants contend that the statute should be construed to give the municipal court power to grant a new trial, but that, if it be not so construed, then it should be held unconstitutional in failing to give a constitutional trial by jury. Under the statute on appeal to the circuit court, that court may grant a new trial in the circuit court within its discretion.

[1] The Constitution, article 1, § 5, guarantees trial by jury, which means a trial by jury as at common law. La Bowe v. Balthazor, supra. Such a trial in civil cases was conducted under the supervision of a judge, having the right and duty to instruct the jury, to direct a verdict, or to set the verdict aside in proper cases, and to grant new trials in the exercise of judicial discretion. Unless the statute governing the municipal court of Fond du Lac county be construed to provide for a jury trial, with the necessary incidents thereto at common law, it is void.

Many cases might be cited to this effect. A few will suffice: Thoe v. C., M. & St. P. Ry. Co., 181 Wis. 456, 195 N. W. 407, 29 A. L. R. 1280;In re Opinion of Justices, 207 Mass. 606, 94 N. E. 846;Capital Traction Co. v. Hof, 174 U. S. 1, 19 S. Ct. 580, 43 L. Ed. 873. In the last case the court said:

“ ‘Trial by jury,’ in the primary and usual sense of the term at the common law and in the American Constitutions, is not merely a trial by a jury of twelve men before an officer vested with authority to cause them to be summoned and empaneled, to administer oaths to them and to the constable in charge, and to enter judgment and issue execution on their verdict; but it is a trial by a jury of twelve men, in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the...