Wiedenhaupt v. Hoelzel , 254 Wis. 39 ( 1948 )

Action begun October 23, 1947, by Anna Wiedenhaupt, widow of Henry Wiedenhaupt, plaintiff and respondent, against Howard Hoelzel and the Mutual Automobile Insurance Company of the Town of Herman, a corporation, defendants and appellants, to recover damages for the negligent killing of her husband, Henry Wiedenhaupt. The case was tried to a jury, which found in favor of the plaintiff, and judgment was entered accordingly. Defendants appeal.

On the night prior to the accident Henry Wiedenhaupt left a tavern and dance hall at 11:30 p.m. He was last seen alive walking north on the west shoulder of the highway about three fourths of a mile from the point of the accident in question, which was about a mile south of Kaukauna.

The defendant Howard Hoelzel, with four passengers, left a dance hall near Appleton about 12:15 a.m. on May 19, 1947, proceeding to Kaukauna and south from Kaukauna on Highway 55, said highway being a twenty-foot, straight, concrete highway with shoulders of about nine feet on each side. The night was dark and clear, and the concrete dry. The driver Hoelzel first observed Wiedenhaupt lying on the west half of the highway with his head toward the center, his feet toward the shoulder, hands at his sides, face up and body motionless, when about ten to twenty feet from him. Wiedenhaupt was entirely on the west lane, between the center line and the shoulder. He had on a dark coat and lighter-colored trousers. Hoelzel applied the brakes, but the car ran over Wiedenhaupt and dragged and rolled him along the highway for a distance of fifty-nine feet south of the point of impact. The reason that Wiedenhaupt was upon the highway is unexplained. He was dead when examined immediately after the accident.

The case was tried to a jury. After the jury retired, they informed the bailiff that they desired further instructions. The bailiff notified the court reporter, who, in the absence of counsel and the parties, went into the juryroom, made some notes, and called the trial judge by telephone. The trial judge gave a statement to the reporter over the telephone, and the reporter, again in the absence of counsel or the parties, went into the juryroom and made substantially the following statement to the jury:

"Tell them they should just answer each question and the court later on will take care of that. Go through the questions. The result will be something determined by the court and not by the jury. Answer each question according to the evidence."

The jury found the defendant Howard Hoelzel negligent as to lookout and that his negligence was a proximate cause of the accident. The jury also found that the deceased, Henry Wiedenhaupt, was negligent as to his position upon the highway at the time of the accident. They attributed cent of the negligence to the defendant Howard Hoelzel forty per cent of the negligence to Henry Wiedenhaupt. The appellants claim: (1) That the finding of the jury that Hoelzel's negligent lookout was a proximate cause of the accident is not supported by credible evidence; (2) that deceased's negligence was as great as or greater than Hoelzel's negligence; and (3) that appellants are entitled to a new trial on the ground that the jury received a communication from the judge, not in open court.

As to the last contention, it is the well-settled rule in this state that all proceedings in a case shall be open and public; that any communication with the jury, after the case is submitted to them and they have retired for deliberation on their verdict, by any person, shall be in open court, and in the presence of the parties or their representatives, where practicable. The rule is strict and any deviation from the rule has generally been treated as sufficient ground for setting aside the verdict, even though, as here, the communication was not prompted by improper motives and even though it has not influenced the jury in arriving at their verdict. A defeated party should not be required to show that a communication not made in open court was in fact prejudicial. Havenor v. State (1905),125 Wis. 444, 104 N.W. 116; Hurst v. Webster Mfg. Co. (1906)128 Wis. 342, 107 N.W. 666; Ulrich v. Schwarz (1929),199 Wis. 24, 225 N.W. 195.

The respondent cites the case of Dishmaker v. Heck (1915),159 Wis. 572, 150 N.W. 951. The facts in the DishmakerCase are clearly distinguishable, as in that case the entire communication was in open court, was taken down by the reporter, and became a part of the record.

We hold that the communication had between the jury and the judge, through the reporter, is sufficient ground for setting aside the verdict and for ordering a new trial.

In view of the above determination we deem it unnecessary to pass upon the other points, except to state that the record shows they are questions for a jury.

By the Court. — The judgment is reversed and the cause is remanded for a new trial.