Drabek v. Sabley , 31 Wis. 2d 184 ( 1966 )

Beilfuss, J.

(dissenting). I respectfully dissent from the majority opinion.

As we have stated countless times:

“When a jury verdict is attacked we inquire only whether there is any credible evidence that, under any reasonable view, supports the verdict. This is especially so when the verdict has the trial court’s approval. Olson v. Milwaukee Automobile Ins. Co. (1954), 266 Wis. 106, 62 N. W. (2d) 549, 63 N. W. (2d) 740; Hibner v. Lindauer (1963), 18 Wis. (2d) 451, 118 N. W. (2d) 873.” Cheetham v. Piggly Wiggly Madison Co. (1964), 24 Wis. (2d) 286, 290, 128 N. W. (2d) 400.

The majority concedes that the jury could find that Dr. Sabley’s actions were reasonable up to the time he put the boy in his car and drove away. The forcible restraint of the boy had been accomplished by that time. I believe the jury had the same right to determine the reasonableness of Dr. Sabley’s conduct toward the boy for the next fifteen to twenty minutes. The entire conduct of both boy and Dr. Sabley was before the jury; they found it was reasonable.

Although I would have no hesitancy in approving a jury verdict finding that Dr. Sabley’s conduct was unreasonable, I believe it was a jury question and that this court should not substitute its judgment for that of the jury on this question.

I would affirm the judgment.

I am authorized to state that Mr. Chief Justice Currie joins in this dissent.