Fraundorf v. Schmidt

Fritz, J. The only error assigned is that the court, in connection with instructing that a verdict may be based on the votes of ten or more members of the jury, erroneously [159] added, “but at least the same ten jurors must agree to all of the answers made in the verdict.” Respondent concedes that the quoted portion of that instruction was subject to criticism for the reasons stated in Guth v. Fisher, 213 Wis. 323, 251 N. W. 223, 226. However that error was not prejudicial in this case. On the one hand, as one juror dissented to the answer returned to subdivision “b” of the first question, and two other jurors dissented to the assessment of damages in answer to the sixth question, it is-obvious that the jurors did not understand that they were required to have at least ten of their number agree to all of the answers made in the verdict. The fact that all told three jurors dissented in the course of answering the questions in the verdict demonstrates that they did not fall into the error of believing that at least ten of them had to agree to all of the answers returned. On the other hand, although there was one dissent to the answer that Schmidt was negligent in respect to his management and control of his automobile, the jurors unanimously found him negligent in respect to keeping a proper lookout, and, in that connection, unanimously found adversely to his contentions in respect to all other facts which had to be established in order to hold Schmidt liable to plaintiff- for the amount assessed as her damages by ten of the jurors. The verdict returned as the result of the consensus of opinion of at least ten jurors on all questions necessary to sustain recovery by plaintiff from Schmidt was sufficient to warrant the entry of the judgment. Will v. Chicago, M. & St. P. R. Co. 191 Wis. 247, 254, 210 N. W. 717; Christensen v. Schwartz, 198 Wis. 222, 222 N. W. 231, 223 N. W. 839; Biersach v. Wechselberg, 206 Wis. 113, 238 N. W. 905. As the error assigned has not affected the substantial rights of appellant, the judgment should not be reversed. Sec. 274.37, Stats. By the Court. — Judgment affirmed.