Schmitt v. Northern Pacific Railway Co.

Wistslow, J.

The appellant’s principal contention is that the finding of the jury to the effect that the bill of lading introduced in evidence was not the one delivered to the plaintiff when the goods were shipped is.contrary to the evidence. With this contention we find it impossible to agree. It is true that there was much testimony tending to show that it was the identical bill delivered to the plaintiff, and by him. turned over to the defendant’s agent after the fire; and it is true also that the plaintiff admitted that upon its face it looked like the bill which he received; but he never admitted that it was the same bill, and, on the contrary, lie testified positively that the bill which he received was a different paper, not written by Thnnberg (as was the bill in evidence), but written out in full and signed by the cashier. There was also evidence by the plaintiff’s son, who saw and examined the original bill, that the words, “Released to val. $5.00 cwt.,” were not upon the original bill. It is not a case where it can be said that the evidence and all the reasonable probabilities are against the verdict; therefore the ruling of the trial court refusing to grant a new trial on the .ground that the verdict was contrary to the evidence must be sustained.

It is said that the trial court committed prejudicial error in charging the jury generally as to the legal effect of their answers to certain questions of the verdict. That the court did so charge is indisputable, and if in fact a special verdict was requested, then such general charge and the submission of a general verdict constituted manifest error under the rulings of this court. Ward v. C., M. & St. P. R. Co. 102 Wis. 223, 18 N. W. 442. The question is whether a special verdict was requested by the appellant within the meaning ■of sec. 2858, Stats. 1898, or whether there was simply a request to submit certain issues of fact in addition to the general verdict. If the former, there was error; if the latter, there was no error. This question is not entirely free from -difficulty. There was no oral request for a special verdict, but at the close of the testimony the appellant filed a paper entitled in the case and commencing as follows:

“Now comes the defendant in the above action, and moves and requests the court to submit to the jury herein for answer and as a special verdict the following questions, to wit.”

Here follow five questions which will be found stated at length in the statement of facts. The court then proceeded to submit a general verdict to the jury, and to charge them-generally upon the law, and at the close of this general charge said to the jury that, in addition to the ordinary verdict, they should answer these questions. The court then read the first, second," and fourth questions, and, after reading the fourth, said to the defendant’s attorney, “I might as well erase that, because they give that in the general verdict.” to which counsel said, “Perhaps that is so.” and the ■court thereupon withdrew it. The case then went to the jury without further remark, or any intimation anywhere that a special verdict had been demanded. Upon the hearing of a motion for a new trial the ground was taken that a special verdict had been requested, and that hence the general charge was erroneous; but the trial court, in its order overruling the motion,, stated:

“The court holds that no request for special verdict was made; and neither was it treated as a- request for a special verdict by the court or counsel at the time of the trial, but that it was rather in the nature of a request for the submission of specific questions to the jury, which questions were submitted to the jury with the exception of one as to the amount of damages, and that question was submitted in the ■general verdict.”

This statement of the trial court as to the manner in which the written request was treated at the time of the trial certainly agrees very well with the facts shown by the record, and it must be accepted as conclusive. We have, then, the fact that neither court nor opposing counsel understood that there had been any request made for a special verdict, but •simply a request made for the submission of certain questions; and not only this, but the court indicated this understanding very clearly to appellant’s counsel when suggesting that the question as to the value might as well be erased because. covered by the general verdict; and counsel assented to the suggestion, though he must have clearly seen that this ■could not rightly be done if the verdict were in fact a special verdict. What should be the rule when it appears that there 'has been misapprehension of this kind by court and counsel ? We can bave no doubt that where the counsel did not make the nature of his request clear, but put it in such a way that it might easily be misunderstood, and did not correct the misunderstanding when it must have been apparent, he must be hold to he estopped from now claiming that his request was different from that which the court understood it to be. It was very easy to request a special verdict in a way that could not be misunderstood. All that it was necessary to do was to rise at the close of the evidence, and say that the defendant requested a special verdict, and the right was secured. To pass to the court a paper containing a number of' questions, with a written statement at the head to the effect that the defendant requests that the questions be submitted to the jury for answer and as a special verdict, would doubtless be sufficient if the court read the statement; but in the hurry of the trial it might easily be that the trial court and opposing counsel would entirely overlook the opening paragraph as simply a formal clause, and confine their attention-to the questions themselves. When it is so easy to- make the-request in a way which cannot be misunderstood, what justification is there for making it in delphic language, or concealing it in unexpected places ? We can see none, and we hold in the present case that the request must be treated as the trial court understood it — i. e., as simply a request to submit certain questions — and hence that the general charge and verdict was not error.

There'are no other serious questions in the case. A motion for new trial on the ground of newly discovered evidence was made and overruled, and this ruling is claimed to be error, but it is plain that the ruling was correct. The supposed newly discovered evidence consisted of an alleged written release of the defendant from liability for destruction of the property by fire and other causes, given by plaintiff when he shipped the goods at Spokane. It is sufficient to* say that this release was in possession of the defendant from tlie time it was given, and it was clearly tbe defendant’s own neglect not to have it present at the time of the trial.

At the end of the plaintiff’s closing argument to the jury the defendant’s attorney requested that he be allowed to argue the fifth special question-to the jury;.because he claimed that the position taken by plaintiff that the bill of lading in evidence was net the one received by him, but a substituted paper, was a new one, and had not been argued. The court, .however, declined the request -on the ground that the position had been fully argued by the plaintiff in his opening, and the ruling must be sustained. The conduct of the argument of a case is one peculiarly within the province of the trial .judge to regulate, and the cases are rare where this court will interfere.

By the Gourt. — Judgment affirmed.