Peppercorn v. City of Black River Falls

Cassoday, J. The trial court committed no error in refusing to allow the plaintiff compensation for loss óf time during her minority from inability to labor by reason of the injury. It does not appear that she was - emancipated, and of course her services during that time belonged to her father and not to her. Nor did the court commit any error in refusing to allow her to recover for moneys paid out or incurred by her brother in her behalf for medical attendance and medicines in consequence of such injury. It may be that the physician so in attendance and the person so furnishing the medicines, respectively, might have recovered therefor as for necessaries, but those things gave her no right of action for moneys voluntarily paid and liabilities voluntarily incurred by her brother or her father. Taylor [41] v. Hill, 86 Wis. 105. The result is that the plaintiff can take nothing by her appeal; and, in so far as the judgment is in favor of the defendant in disallowing those two items, the same is affirmed. It is undisputed that during the trial certain of the jurymen in the case, without any view having been authorized and without the knowledge of those representing the defendant, examined the place of the accident for .the purpose of ascertaining the condition of the walk. Whether such examination was influential in securing a verdict in favor of the plaintiff it is impossible to tell. We cannot say that it did not have that effect. Since it may have had that effect, we must assume that it did have that effect. The rule in such cases is well stated by an able text writer, as follows: “ Jarors must base their findings upon evidence adduced in their hearing in court, or upon a view authorized by the court. For a juror to go out of court, of his own motion, and make an inspection of the premises or thing in dispute, will be good ground of setting aside the verdict; though, if the party entitled to complain have knowledge of the ir-, regularity and remain silent, it will be deemed waived.” Thomp. Trials, §§ 904, 2605. Here there is no pretense of any such waiver. Woodbury v. Anoka, 52 Minn. 329. It is contended that the affidavits of the jurors as to such misconduct were incompetent. But the rule of public policy which excludes the testimony of jurors to impeach their verdict extends only to matters taking place during their retirement. Thomp. Trials, § 2619. This question was recently considered by this court in McBean v. State, 83 Wis. 206. We have no doubt that the affidavits of the jurors in the case at bar were competent. By the Court.— So much of the judgment as is against the defendant is reversed, and the cause is remanded -for a new trial.