Strupp v. Farmers Mut. Auto. Ins. Co.

• Decision Date: 27 June 1961
• Citation: 14 Wis.2d 158,109 N.W.2d 660
• Parties: Cornelius STRUPP, Plaintiff, Janice E. Aussem, now Nichols, by Guardian ad litem, Appellant, v. FARMERS MUTUAL AUTOMOBILE INS. CO., a Wis. corporation, et al., Respondents, Superior Mutual Ins. Co., a Wis. insurance corporation, Impleaded Defendant. MOTORS INSURANCE CORP., a foreign corporation, Appellant, v. Edward F. EBERT et al., Respondents.
• Court: Wisconsin Supreme Court

Page 660

109 N.W.2d 660 14 Wis.2d 158 Cornelius STRUPP, Plaintiff,
Janice E. Aussem, now Nichols, by Guardian ad litem, Appellant,
v.
FARMERS MUTUAL AUTOMOBILE INS. CO., a Wis. corporation, et
al., Respondents,
Superior Mutual Ins. Co., a Wis. insurance corporation,
Impleaded Defendant.
MOTORS INSURANCE CORP., a foreign corporation, Appellant,
v.
Edward F. EBERT et al., Respondents. Supreme Court of Wisconsin. June 27, 1961.

Phillips, Phillips, Hoffman & Lay, Milwaukee, Bertram J. Hoffman, Milwaukee, of counsel, for appellants Strupp and Aussem.

Ben G. Slater, Milwaukee, for appellant Motors Ins. Corp.

[14 Wis.2d 162] John W. Emmerling, Milwaukee, for respondents Ebert and Farmers Mut. Auto. Ins. Co.

Goldschmidt, deVries, Hollander & Vlasak, Milwaukee, for respondent Superior Mut. Ins. Co.

FAIRCHILD, Justice.

1. Defective verdict. The verdict was defective as to the essential liability questions. Ten jurors agreed that both drivers were causally negligent, but only nine of those ten agreed on the comparison. '* * * 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.' Sec. 270.25(1), Stats.

When a comparison of negligence is called for,

'it is necessary for at least the same ten jurors to agree on every question

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that it is necessary for them to consider in answering the question of comparative negligence. * * * the same ten jurors must agree as to the items of causal negligence found and the comparative effect of the causal negligence of the parties in producing the resulting damages.' ¹

2. Comparison as a matter of law. The circuit court treated the jury's answers with respect to causal negligence of each driver as verities established by the verdict, and concluded that the found causal negligence of Mrs. Nichols was equal to the found causal negligence of Mr. Ebert so that the complaint must be dismissed.

Where a jury finds on conflicting evidence that both parties are negligent and that some percentage less than fifty of the causal negligence is attributable to plaintiff, and where the court deems as a matter of law that the found negligence of plaintiff is at least equal to the found negligence of defendant, it could be argued with some logic that the findings are [14 Wis.2d 163] inconsistent and that a new trial is required. In such cases, however, it has been the practice to recognize the findings as to negligence and set aside the comparison. ² Thus the findings as to the existence of negligence and its causality are accorded somewhat greater dignity than the answer as to comparison. This practice seems justified because of the unique relationship between these types of findings. Necessarily the jury must resolve the issues as to existence of negligence first, and the answer to the comparison question is dependent upon the facts determined by the other answers. In general, it is probably more difficult to make an exact comparison of negligence than to decide whether particular conduct was negligence.

It might be argued that where a verdict is defective for the reason appearing in the present case, there is more reason for ordering a new trial without testing the soundness of the comparison answer by assuming that the answers on the issues of the existence of causal negligence are true, but we see no substantial probability of injustice in following the same practice as where the verdict is free from defect.

In determining that Mrs. Nichols'...