State ex rel. Polk v. Johnson

• Decision Date: 02 June 1970
• Citation: 47 Wis.2d 207,177 N.W.2d 122
• Parties: STATE ex rel. Betty POLK, Appellant, v. Charles JOHNSON, Respondent.
• Court: Wisconsin Supreme Court

Page 122

177 N.W.2d 122

47 Wis.2d 207

STATE ex rel. Betty POLK, Appellant, v. Charles JOHNSON, Respondent.

Supreme Court of Wisconsin.

June 2, 1970.

This paternity action was commenced on behalf of Betty Polk against the defendant-respondent Charles Johnson.

On June 16, 1969, a jury of twelve was empaneled to hear the action. At the close of plaintiff-appellant's case the defendant moved to dismiss the complaint. The court denied this motion without prejudice. On the following day the defendant, Johnson, had just started the presentation of his evidence when a juror volunteered that she knew the defendant by virtue of some limited business transactions and felt she should be excused. The juror was examined to some extent concerning her knowledge of the defendant and nature of the business transactions. The assistant corporation counsel, as counsel for plaintiff, moved that the juror be struck from the panel. This motion was granted, the juror's name stricken, and the juror withdrawn from the panel.

Counsel for plaintiff refused to stipulate that the case could be completed with eleven jurors. The trial court then reconsidered the defendant's motion to dismiss, sua sponte, and granted it; the court, also upon its own motion, granted a directed verdict for the defendant.

Subsequent motions after verdict challenging the dismissal of the complaint were heard. The court reaffirmed both the granting of the motion to dismiss and its own motion directing the verdict and entered judgment to that effect.

Plaintiff appeals.

Additional facts will be set forth in the opinion.

Robert W. Warren, Atty. Gen., Madison, Robert P. Russell, Corp. Counsel, Gerald C. Kops, Asst. Corp. Counsel, Milwaukee, for appellant.

Max E. Geline, Milwaukee, for respondent.

BEILFUSS, Justice.

The issue is:

Did the trial court err in directing a verdict for the defendant after excusing a juror for cause?

A capsule resume of the evidence may be helpful in reviewing the trial court's orders and judgment.

The testimony of the complainant reveals she bore a child out of wedlock January 5, 1968. She testified the only person with whom she had sexual intercourse during the period of conception was the defendant, Charles Johnson. Johnson was married, the father of five children, but was separated from his wife. The complainant stated she had been seeing the defendant steadily since August, 1966, but not as what she considered 'socially going out.' Their relationship consisted of numerous visits to various motels and sexual relationships in cars or at her home over a period of several months.

The complainant further testified that another man had engaged in an abnormal sexual act with her during the period of conception. She stated, however, that no act of normal sexual intercourse was engaged in with him or any man except the defendant during that time period.

The plaintiff put in additional evidence to corroborate her testimony regarding the defendant's visit to her home during the period of conception and then rested. At the close of the plaintiff's case the defendant moved for the dismissal of the complaint on the grounds the evidence was of such an incredible character it would not permit a jury to find a clear and convincing preponderance of the evidence in support of the plaintiff's claims.

Without argument by plaintiff's counsel on the motion the trial court denied it, stating:

'THE COURT: Let me say this, if counsel had--if this was a matter for the Court to decide, I probably wouldn't have any question today; however, there's a jury here and I think I would be invading the province of the jury. What I may decide here might be one thing but the jury--there is evidence in--and sufficient evidence for the jury to find, and I'm going to deny the motion.'

The defense then began the presentation of its case by calling the defendant Charles Johnson. His testimony was interrupted and one of the jurors struck as indicated in the statement of facts.

After plaintiff's counsel refused to stipulate to proceed with eleven jurors, the following colloquy took place:

'THE COURT: On the basis of that this Court was on the dividing line as to whether or not to direct a directed verdict in favor of the defendant, however, this--

'MR KOPS: Might I at least, Your Honor, be allowed to argue that motion. That motion was denied but I never got a chance to argue that particular motion.

'THE COURT: Motion for what?

'MR. KOPS: Directed verdict, I never was given a chance.

'THE COURT: you will be given that chance right now.'

The plaintiff was then afforded an opportunity to argue against the directed verdict motion, which the trial court thereafter granted sua sponte.

The Wisconsin rule respecting a mistrial when a juror has been disqualified appears to be clear. In Planer v. Smith (1876), 40 Wis. 31, 33, 34, this court said:

'The power of the circuit court, in a proper case, to permit a juror to be withdrawn, or to order a nonsuit, is undoubted; but there is no necessary connection between the two processes. The withdrawal of a juror operates to continue the cause, and does not of itself entitle the defendant to a judgment of any kind. If a nonsuit be properly granted, the withdrawal of a juror as preliminary thereto is entirely superfluous and harmless. But if judgment of nonsuit be rendered merely because a juror has been withdrawn, such judgment is founded upon a misapprehension of the legal effect of withdrawing a juror, and is erroneous. 2 Tidd's Pr., 862; 1 Arch. Pr., 282; Stodhart v. Johnson, 3 Term, 657; Sanderson v. Nestor, Ryan & M., 402 Everett v. Youells, 3 B. & A., 349; The People v. Olcott, 2 Johns.Cas., 301; Chandler v. Bicknell, 5 Cow., 30; The People v. Judges of New York, 8 id., 127; The People v. Ellis, 15 Wend., 371.

'The judgment before us is erroneous because it was evidently rendered on the theory that judgment must necessarily follow the withdrawal of a juror. But were any judgment proper, it should only be a judgment of nonsuit, which, of course, would be no bar to another action for the same cause.

'This, however, is an absolute judgment, disposing of the merits of the controversy, and it would be none the less so were it for the return of the property instead of being for the value thereof. In either form it would bar another action for the same property; and hence, in either form, would be erroneous.'

The procedural doctrine set forth in Planer was reaffirmed in Frion v. Craig (1957), 274 Wis. 550, 80 N.W.2d 808. That was a personal injury action and involved alleged misconduct by a juror during trial. The plaintiff had moved the juror be excused and the trial proceed with eleven jurors. The motion was denied and the trial proceeded to judgment. The decision on appeal was principally concerned with the propriety of the alleged misconduct, but the court said, by way of dicta in an opinion by Justice CURRIE, at pp. 554, 555, 80 N.W.2d at pp. 808, 810:

'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 juror, 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 11 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...