Wolff v. Carstens ( 1912 )

Siebecker, J.

Tbe first exception urged pertains to tbe reception in evidence of statements made by Healy concerning a portion of tbe inventory of tbe stock of tbe co-operative enterprise without tbe written proofs being produced, and of LehmhvhVs evidence of a reported statement of an employee to tbe effect that LehmJcuhVs presence at tbe session of tbe auditing committee was not desired by them. These statements are of such slight weight and importance that they cannot lie deemed to Rave been of consequence in the jury’s deliberations on the case, and hence no substantial prejudice could result therefrom.

It is contended that the court erred in charging the jury and thereby prejudicially affected the appellant’s rights, in that the court usurped the function of the jury by directing them what weight to give to evidence in the case, by resolving conflicts in the evidence, by directing the jury how such conflicts were to be decided, and by otherwise expressing opinions to the jury as to the credibility of witnesses and what evidence should be considered as controlling upon the issues, thus misleading the jury and usurping its functions. The charge covers twenty-nine pages of the printed case and its context shows that it is properly subject to criticism as being unnecessarily elaborate as to details, confusing in its effect, and in some of its parts as invading the province of the jury by communicating to them the court’s'opinion of the effect.of the evidence on disputed issues of fact. Nor can we approve the charge in its treatment of the evidence by way of argumentation, which necessarily conveyed to the jury the court’s personal view of the weight of the evidence, the credibility of witnesses, and the probative force of evidentiary facts. This practice has the inherent objection of tending to lead the court to invade the jury’s function of determining the weight, probative effect, and sufficiency of the evidence, and what inferences of fact should be drawn from the evidence adduced. We cannot escape the, conviction that the court in this case, in portions of its charge to the jury, invaded the functions of the jury in these respects. Nor can we approve the practice, in connection with a special verdict, of charging juries upon plain and clear issues of fact, such as are presented here, by such extended and argumentative instructions on the facts as was done upon this trial. Such practice fails to accomplish the object of directing the jury to the ultimate issues of fact for their determination, and is apt to confuse and mislead them and tbus operate prejudicially upon tbe rights of tbe parties. Erom a study of tbe record we cannot say that tbe verdict in tbis case should be disturbed on account of tbe court following tbis erroneous method of instructing tbe jury, for it does not appear that tbis error has affected tbe substantial rights of tbe appellant. An examination of tbe special verdict discloses that tbe jury negatived tbe charge that the defendants wilfully conspired to fraudulently sell plaintiff tbis stock for tbe benefit of tbe corporation, as charged in tbe complaint, and there is no finding that the plaintiff relied on any of tbe representations made by tbe defendants and was thereby induced to purchase tbe certificate of corporate stock here in question. The appellant raised no question of any insufficiency in tbis respect in tbe verdict rendered and made no special request for a finding thereon; hence it must be considered that the court under sec. 2858to, Stats. (Laws of 1907, cb. 346), found tbe fact against appellant’s contention. It must follow that tbe court properly awarded tbe defendants judgment upon tbe ground that tbe facts found do not establish that tbe defendants practiced,the fraud alleged on tbe plaintiff, because it does not appear that tbe plaintiff relied on any fraudulent representations of tbe defendants and was thereby induced to purchase tbe certificate of stock.

Tbe form of .the special verdict submitted compels us to call attention to it. It will be observed that tbe court framed questions which were designed to cover ultimate issues of fact presented by tbe pleadings, and then subdivided such questions into .subsidiary inquiries. -This was carried to an extent that led to inquiries upon mere disputes in tbe evidence bearing on tbe ultimate issues of fact raised by tbe pleadings. Such a practice is not in accord with tbe correct and approved method of framing special verdicts under tbe statute. It tends to confusion and prevents juries from determining under tbe evidence tbe ultimate issues presented by the pleadings, and hence is not tbe correct method of framing special verdicts under tbe calls of tbe statute. As stated in tbe bead-note to Mauch v. Hartford, 112 Wis. 40, 87 N. W. 816:

“Only special questions, covering tbe issues made by the pleadings and controverted on tbe evidence, each so framed as to cover a single issue and admit of a direct answer, should be included in a special verdict.”

By the Gowrt. — Judgment affirmed.