Short v. Boss
| Decision Date | 30 April 1929 |
| Citation | 225 N.W. 197,198 Wis. 586 |
| Parties | SHORT v. BOSS. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Clark County; Emery W. Crosby, Circuit Judge. Order reversed.
Action commenced February 4, 1928, to recover for damages to plaintiff's automobile truck November 19, 1927, from a collision with defendant's tractor. Defendant counterclaimed for his damages. From an order of July 12, 1928, granting plaintiff's motion for a new trial, defendant appeals.Herman Leicht, of Medford, for appellant.
Rush & Devos, of Neillsville, for respondent.
In closing his charge to the jury upon the special verdict of ten questions, with subdivisions, the court said: “After you have arrived at your own conclusions as to how the question should be answered, you will have your foreman write in the answer, and after you have completed your work you will return into court.” No reference was made in the charge to the present statutory provision, section 270.25, providing for a five-sixths verdict.
As returned the verdict on its face would seemingly have warranted judgment for defendant on his counterclaim. Two of the jurors signed their names at the end of the answers to five of the questions. The answers so subscribed appeared therefore to be a five-sixths verdict.
Upon being handed the verdict the court said that he had not instructed them on a five-sixths verdict, and, “but I see you have answered some of the questions that way.” The foreman then stated: “We asked the bailiff if they could be answered that way and he said it was all right and that it was their verdict unless they had made a mistake there.” The jury was then polled with the same result as had been indicated on the face of the verdict. Thereafter the respective parties made a number of alternative motions, all of which are severally denied except that of the plaintiff for a new trial because of the misconduct of the jury.
The record here clearly shows that plaintiff's motion for a new trial was granted solely because the form of the verdict as presented was apparently the result of the above-mentioned statement being made to the jury, at its request, by the deputy sheriff and in the absence of court and counsel.
The trial court was of the opinion that the duty was imperative on him to so grant a new trial because it seemed to him that such a statement by the deputy sheriff was in fact an instruction as to the law in the case and must be considered as of the same effect as though the trial court had, outside of the courtroom, and without having it written, said the same thing to the jury.
Such view, respondent now contends, is correct and mandatory because of the provisions of section 270.21, Stats., requiring the trial judge to either reduce to writing and give as so written, or, when delivered orally, to be taken down by the reporter, his charge and instructions and all further and particular instructions in case the jury return after having first retired to deliberate, and further providing that if any judge shall violate such provisions or make any comments to the jury upon the law or facts on the trial without the same being so in writing the verdict found shall be reversed.
[1] We do not, however, consider such statutory provisions applicable here; they so plainly apply to conduct by the trial judge himself, and not to misconduct or mistake of the jurors themselves or of some third person. There was here therefore no violation by the trial judge of his duty as fixed either by statute or judicial decision, and what was ruled in the case of Hurst v. Webster Mfg. Co., 128 Wis. 342, 347, 107 N. W. 666, cited by the trial court as controlling...
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