51 N.W.2d 516
Supreme Court of Wisconsin.December 5, 1951 —
February 5, 1952.
APPEAL from a judgment of the circuit court for Walworth county: ALFRED L. DRURY, Circuit Judge. Affirmed.
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Action for damages for personal injuries begun by Wilbur Kuecker against Chester Paasch on May 26, 1950. Judgment in favor of plaintiff. Defendant appeals.
This litigation arose out of an accident occurring on the 13th of November, 1949, when the truck of the plaintiff driving westerly on County Trunk P and an automobile driven by the defendant in an easterly direction collided. The case was tried to the court and jury, and in a special verdict the jury found the defendant negligent with respect to passing the plaintiff and not allowing “at least one half of the main traveled portion of the roadway as nearly as possible;” with respect to lookout; and with respect to management and control. As to findings of causal negligence, when a clerical error was corrected, it was established that the jury had found that the defendant’s negligence was an efficient cause of the collision with respect to the passing of the plaintiff; with respect to lookout; and with respect to management and control. The jury absolved the plaintiff from causal negligence and assessed plaintiff’s damages for personal injuries in the sum of $4,000. Upon motion after verdict, the court, being convinced that the damages were excessive, ordered that the plaintiff “be and he hereby is given the option of accepting judgment in favor of the plaintiff and against the defendant for the following amounts:
plus his costs and disbursements in this action, said sums being the sums fixed by the court and jury at the time the verdict was returned,” with the option of $2,000 for personal
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injuries, the court ruling that “said sum of two thousand ($2,000) dollars for the personal injuries of the plaintiff being the least amount of compensatory damage therefor that a fair and impartial jury would award and that said plaintiff be given a period of fifteen (15) days from and after the date of the service of this order upon the attorney of record for the plaintiff within which the plaintiff may manifest his decision in writing and forward the same in writing to counsel for the defendant with respect to whether or not he accepts said option and said option is hereby given to said plaintiff and his attorney to make said election and the period within which said election is to be made and within which said election may be forwarded to defendant’s counsel is hereby so fixed.” There were other proper provisions in the order which are of no importance upon the questions raised on this appeal. However, it was provided that if the option was not accepted in the manner and at the times specified in the order, a new trial would be granted upon all issues raised by the pleadings. The plaintiff accepted the option granted him but sought to save an exception “thereto in the event of an appeal however and acting under duress of the court’s decision and order in the premises which he feels is erroneous and contrary to law.”
For the appellant there were briefs by Godfrey Godfrey
Elkhorn, and oral argument by Alfred L. Godfrey.
For the respondent there was a brief by Kenney, Korf Pfeil of Elkhorn, and oral argument by Francis J. Korf.
FAIRCHILD, J.
The appellant challenges the correctness of the ruling of the trial court in correcting the verdict by changing the answers from “No” to “Yes” with relation to causal negligence resulting from the clerical error of the jury forewoman in recording the verdict. The affirmative answers, having been established to be the answers of the
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jury, beyond question sustain the jury’s verdict as to causal negligence. Where it clearly appears that the case was properly submitted to the jury and that the correction of the verdict as presented was required as a matter of law, the appellant has been deprived of no right by the correction Wolfgram v. Schoepke, 123 Wis. 19, 100 N.W. 1054; Koss v. A. Geo. Schulz Co. 195 Wis. 243, 218 N.W. 175; Brophy v. Milwaukee E. R. T. Co. 251 Wis. 558, 30 N.W.2d 76.
We find no error in the record which would permit us to interfere with the final judgment as entered. The plaintiff, under the established rule governing options, has accepted the benefit of certainty of recovery rather than submit his case to another jury. We find no occasion for the assertion that he was prejudicially treated by any ruling of the trial court.
After a discussion of the merits of the points involved upon the appeal had been entered into, and when the matter was fully before the court, our attention was called to the fact that a defect in the notice of the appeal existed; and at that time the attorney for the respondent asked to have the appeal dismissed. We, however, in view of sec. 269.51(1), Stats., continued with the hearing of the case upon the merits. We enter into no discussion over the matter at this time, because we have reached a conclusion on the merits which affirms the judgment; and were a dismissal of the appeal to occur, the results would not be essentially different.
Also upon the oral argument in this court there was a suggestion that the special verdict of the jury in this case was inconsistent because the jury, while finding no causal negligence in respect to plaintiff, did ignore the instruction the trial court and answered the comparative negligence question, finding that the plaintiff’s negligence was twenty
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per cent and the defendant’s negligence eighty per cent. However, the defendant, in a motion after verdict, set forth the grounds on which he claimed to be entitled to a new trial but did not mention this part of the verdict as a reason for granting a new trial. It is also true that the subject of inconsistent verdict is not mentioned in the defendant’s brief. The matter not having been raised timely we conclude that the question of inconsistent verdict is not before us on this appeal.
By the Court. — Judgment affirmed.