Schweickhart v. Stuewe

Taylor, J. The learned counsel for the appellants claim that their first motion for judgment should have been granted, because, as it is claimed, that part of the special verdict which found against the plaintiffs’ cause of action was wholly unsupported by the evidence, and for that reason the trial court should have rendered judgment upon the special verdict, without regard to the finding of the jury upon that question. [160] "We think the trial court was right in denying the first motion, for the reason that the special verdict would not support a judgment for the plaintiffs, and because the plaintiffs did not, upon that motion, move .to set aside so much of the special verdict as stood in the way of the plaintiffs’ right of recovery. It is clear to us that a judgment should not be rendered which is in conflict with the special verdict, until such parts of the special verdict as are in conflict with the judgment rendered are set aside. It is claimed, however, by the learned counsel for the appellants that, if the court was satisfied that the findings in the special verdict which stand in the way of the plaintiffs’ recovery are wholly unsupported by the evidence, it is the duty of the trial court to disregard such findings, and render judgment upon what remains of the special verdict, and upon such other facts as are established by the undisputed evidence in the case. We do not think that the contention made b^y the learned counsel for the appellants is supported by the decisions of this court, and we find no authority in the decisions of other courts which sustains their contention. The. utmost extent to which this court has gone in authorizing the trial courts to disregard the special verdict rendered by a jury, when such verdict is wholly unsupported by the evidence, is to set aside such verdict, and then, in its discretion, and not as an absolute duty, to enter judgment in accordance with the undisputed evidence in the case, or to set aside the verdict entirely and grant a new trial. Gammon v. Abrams, 53 Wis. 323, 326; Schweitzer v. Connor, 57 Wis. 177, 182; McNarra v. C. & N. W. R. Co. 41 Wis. 69; Hutchinson v. C. & N. W. R. Co. 41 Wis. 541; Williams v. Porter, 41 Wis. 422, 430; Ward v. Busack, 46 Wis. 401, 413; Weisel v. Spence, 59 Wis. 301; Ault v. Wheeler & W. Mfg. Co. 54 Wis. 300, 304; Berg v. C., M. & St. P. R. Co. 50 Wis. 419, 425; Wright v. Fort Howard, 60 Wis. 119. [161] Had the plaintiffs asked the court, upon their first motion, to set aside that part of the special verdict which stood in the way of the plaintiffs’ recovery, and then to enter judgment in their favor for the amount of their claim, less the amount of the defendant’s counterclaim, on the ground, that the undisputed evidence showed that the plaintiffs were entitled to recover the whole amount of their claim, and the court had granted such motion, there would be just ground for the contention that this court, upon appeal from such judgment, would affirm the direction of the trial court, if we were satisfied that the trial court was right in holding that the undisputed evidence established the plaintiffs’claim. See cases above cited. Eut in this case there are several reasons why this court will not, upon this appeal, direct the court below to enter the judgment asked for: First. The plaintiffs, by their first motion, did not ask to set aside any part of the special verdict. To enter judgment upon the verdict in favor of the plaintiffs would be to enter a judgment in conflict with the verdict. Second. Because the trial judge, upon such motion, refused to grant the judgment asked for, we cannot presume that upon such motion he was satisfied that the undisputed evidence showed that the plaintiffs were entitled to judgment for the whole amount of their claim. Third. Even though it appeared that the learned trial judge was of the opinion, upon such motion, that upon the undisputed evidence the plaintiffs ought to recover, jmt, as the jury had found upon that question submitted to them the contrary, it was within his discretion either to direct judgment for the plaintiffs, or to grant a new trial in the case. See Gammon v. Abrams, 53 Wis. 323. We are also of the opinion that the plaintiffs, if they ever had any right to have this court review the order made by the trial court upon their first motion, have waived such right by moving for and obtaining a new trial in the ac [162] tion. It seems to us inconsistent for the plaintiffs to ask for and obtain an order setting aside the verdict and granting them a new trial, and at the same time claim that no new trial should be had because they are entitled to judgment in their favor on the first trial. We do not think this court should reverse an order asked for and obtained from the court below by the appellants themselves. It is, however, insisted by the learned counsel for the appellants that they are not estopped from complaining that the trial court charged them with the costs of the former trial as a condition of granting a new trial in the action. Ordinarily the question of costs upon granting a new trial is in the discretion of the trial court. Exception is usually made when a new' trial is granted on account of the misconduct of the jury in rendering a perverse verdict. In this case the trial court has said that the verdict ought to be set aside and a new trial granted because the verdict is wholly unsupported hy the evidence. Without looking into ■the record for the purpose of ascertaining whether the learned judge is supported in his opinion, we think he was not justified, upon his theory of the case, in charging the costs of the former trial to the plaintiffs as a condition of the new trial. If the plaintiffs made a clear case upon the first trial, and, by the perversity of the jury, they failed to obtain a verdict in their favor, there can be no justice in charging them with the costs of that trial in order to entitle them to a new trial. Baxter v. Payne, 1 Pin. 505; Emmons v. Sheldon, 26 Wis. 648, 650; Pound v. Roan, 45 Wis. 130; Smith v. Lander, 48 Wis. 587, 593; Kayser v. Hartnett, 67 Wis. 256; Hodgson v. Barvis, 2 Chit. 268. When a new trial is granted because the verdict is -wholly unsupported by the evidence, we are of the opinion that, upon granting such new' .trial, the costs of the former trial should not be charged to the party obtaining the new trial, as a condition of granting such new trial. A verdict of a [163] jury which is wholly unsupported by the evidence is clearly a perverse verdict; as much so as if rendered in direct violation of the law of the case as laid down by the court upon the trial of the action. The appeal from the order refusing to render judgment in favor of the plaintiffs upon the verdict is dismissed. The right of the plaintiffs to appeal from that order was waived by their obtaining an order for a new trial. So much of the second order appealed from as sets aside the verdict and grants a new trial is affirmed. That part of such order which directs the plaintiffs to pay to the defendant the costs of the former trial is reversed. Each .party will pay his own costs of this appeal, and the appellants will pay the fees of the clerk of this court. By the Court.— Ordered accordingly.