Christensen v. Schwartz

Wisconsin Supreme Court

Christensen v. Schwartz

222 N.W. 231, 198 Wis. 222, 1929 Wisc. LEXIS 42

CourtWisconsin Supreme Court

DecidedMarch 5, 1929

StatusPublished

Cited by14 cases

This text of 222 N.W. 231 (Christensen v. Schwartz) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Christensen v. Schwartz, 222 N.W. 231, 198 Wis. 222, 1929 Wisc. LEXIS 42 (Wis. 1929).

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Opinions

The following opinion was filed December 4, 1928:

Stevens, J.

Upon the record presented, the question of, whether defendant Schwartz participated in any conspiracy to defraud was one for the jury to determine.

The verdict rendered is however insufficient to warrant a judgment against defendant Schwartz. Under the five-sixths jury law, sec. 270.25 of the Statutes, at least ten jurors must agree upon the answers to all questions that are essential to establish the liability of the defendant Schwartz. That rule requires that at least the same ten jurors must agree as to the answers that establish the liability of defendant Schwartz and measure the amount of damages sustained by plaintiff. Will v. C., M. & St. P. R. Co. 191 Wis. 247, 254, 255, 210 N. W. 717. Applying that rule to the case at bar, it means that at least ten jurors must agree' in finding that defendant Schwartz conspired with defendant Petersen to defraud the plaintiff and also in fixing the amount of damages sustained by the plaintiff because of such fraud.

In rendering their verdict each juror who agreed upon the answer to any question signed his or her name after [224]*224that answer. It appears from an inspection of the verdict that ten jurors agreed to the answer finding that the defendant Schwartz conspired with the defendant Petersen to defraud the plaintiff. It also appears that only nine of the jurors that agreed upon this answer as to conspiracy concurred in the answer fixing the amount of the damages. It follows that the verdict is defective because the facts essential to establish liability on the part of defendant Schwartz and to measure the amount of that liability were not agreed to by at least ten members of the jury.

This defect in the verdict was not waived by failing to ask a poll of the jury that returned the verdict, under the rule of Bentson v. Brown, 186 Wis. 629, 637, 203 N. W. 380, because the verdict showed upon its face that it did not comply with the requirements of the five-sixths jury law, hence it could not be sustained under any presumption of regularity.

In order to preserve the right of the defendant Schwartz to have all issues which fix his liability determined by a constitutional jury, the judgment must be reversed.

By the Court. — Judgment reversed, and cause remanded for a new trial.

Eschweiler, J., dissents.

The following opinion was filed March 5, 1929:

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The following opinion was filed December 4, 1928:

Stevens, J.

Upon the record presented, the question of, whether defendant Schwartz participated in any conspiracy to defraud was one for the jury to determine.

The verdict rendered is however insufficient to warrant a judgment against defendant Schwartz. Under the five-sixths jury law, sec. 270.25 of the Statutes, at least ten jurors must agree upon the answers to all questions that are essential to establish the liability of the defendant Schwartz. That rule requires that at least the same ten jurors must agree as to the answers that establish the liability of defendant Schwartz and measure the amount of damages sustained by plaintiff. Will v. C., M. & St. P. R. Co. 191 Wis. 247, 254, 255, 210 N. W. 717. Applying that rule to the case at bar, it means that at least ten jurors must agree' in finding that defendant Schwartz conspired with defendant Petersen to defraud the plaintiff and also in fixing the amount of damages sustained by the plaintiff because of such fraud.

In rendering their verdict each juror who agreed upon the answer to any question signed his or her name after [224]*224that answer. It appears from an inspection of the verdict that ten jurors agreed to the answer finding that the defendant Schwartz conspired with the defendant Petersen to defraud the plaintiff. It also appears that only nine of the jurors that agreed upon this answer as to conspiracy concurred in the answer fixing the amount of the damages. It follows that the verdict is defective because the facts essential to establish liability on the part of defendant Schwartz and to measure the amount of that liability were not agreed to by at least ten members of the jury.

This defect in the verdict was not waived by failing to ask a poll of the jury that returned the verdict, under the rule of Bentson v. Brown, 186 Wis. 629, 637, 203 N. W. 380, because the verdict showed upon its face that it did not comply with the requirements of the five-sixths jury law, hence it could not be sustained under any presumption of regularity.

In order to preserve the right of the defendant Schwartz to have all issues which fix his liability determined by a constitutional jury, the judgment must be reversed.

By the Court. — Judgment reversed, and cause remanded for a new trial.

Eschweiler, J., dissents.

The following opinion was filed March 5, 1929:

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222 N.W. 231, 198 Wis. 222, 1929 Wisc. LEXIS 42, Counsel Stack Legal Research, https://law.counselstack.com/opinion/christensen-v-schwartz-wis-1929.

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