In Ford Motor Credit Co. v. Amodt, 29 Wis. 2d 441, 139 N.W.2d 6 (1966), the court held upon similar reasoning that the jury is not permitted to initiate a challenge to its verdict after the jury has returned its verdict and has been discharged.Summary of this case from D.C. Thompson and Co. v. Hauge
December 2, 1965 —
January 4, 1966.
APPEAL from an order of the circuit court for Chippewa county: CLARENCE E. RINEHARD, Circuit Judge. Reversed.
For the appellant there were briefs and oral argument by John Frampton of Chippewa Falls.
For the respondent there was a brief and oral argument by Frank E. Huettner of Cadott.
Ford Motor Credit Company brought this action of replevin to recover an automobile from Earl Amodt. Although the case involves a contract dispute, the principal issues upon this appeal concern the conduct of jurors and the recording of their verdict.
Duane Abrahamson, doing business as Bloomer Sales Company, and the plaintiff entered into a trust-receipt financing agreement in December, 1962. The plaintiff, as entruster, having advanced the purchase price to the manufacturer, would send the new automobile to Bloomer pursuant to the trust-receipt agreement. The plaintiff would issue a trust receipt to Bloomer as trustee of the new automobile, and the plaintiff was to receive payment upon the resale of such automobile.
One who purchases from a trustee such as was Bloomer is given certain protection under the statutes, in that if he is a "buyer in the ordinary course of trade" he shall take free of the entruster's (plaintiff's) security interest in the goods sold. Sec. 241.39, Stats.
A purchaser is a "buyer in the ordinary course of trade" if the goods are sold to him for "new value" and if he acts in good faith, that is, without actual knowledge of any limitation on the trustee's liberty of sale. A purchaser gives "new value" when he surrenders something of value at the time the purchase is made. Sec. 241.31 (1) and (7), Stats.
The automobile in question, a 1964 Ford, was delivered to Bloomer in November, 1963. The plaintiff advanced the dealer price of $2,602.94 to the manufacturer and executed a trust receipt entrusting the 1964 Ford to Bloomer for resale.
Mr. Amodt was employed as a salesman for Bloomer and in the past had obtained a new car each year, trading in the preceding year's model. In December, 1963, he turned over to Bloomer a 1964 Mercury which he had been operating and obtained the 1964 Ford in question.
In May, 1964, the plaintiff believed that its security interest in the cars which it had entrusted to Bloomer was in jeopardy and attempted to take back such automobiles. The plaintiff served replevin papers on Mr. Amodt, contending that he was not a buyer in the ordinary course of trade, as evidenced by the fact that he did not have documentary title to the car and by the further fact that he was using dealer-license plates instead of his own. The plaintiff alleges that Mr. Amodt had not given "new value" but merely was using the car as a fringe benefit of his employment and did not own it.
Mr. Amodt testified that from December, 1963, he operated the 1964 Ford as his personal car, not as a demonstrator, and that he used dealer-license plates because he could not get other plates. He further stated that at the time of the transaction he did not hand over any cash at all because he believed it was all offset by what Mr. Abrahamson owed him on a 1960 loan of $1,000 and also on a 1961 credit of $2,150 which had been established on Bloomer's books as a result of a sale of an automobile for the defendant.
Trial commenced on January 5, 1965, and the case was submitted to the jury in the form of a special verdict on January 8, 1965.
The jury returned with the verdict in completed form at approximately 1 a.m. on January 9, 1965. Neither of the attorneys was then present in court. The judge asked, "Has the jury agreed on a verdict?" The response was, "We have." After the judge had examined the verdict, he handed it to the clerk and said to the jury, "You will listen to the reading of the verdict by the clerk." The verdict was then read aloud in its entirety, as follows:
" Question 1: Did Earl Amodt purchase the automobile in good faith and without actual knowledge of any limitation on Duane Abrahamson's liberty of sale?
" Answer: Yes. Dissenting: None.
" Question 2: If you answer Question 1 `yes', then was the automobile sold and delivered to Earl Amodt for new value?
" Answer: No. Dissenting: None.
" Question 3: If you answer `no' to either of the preceding questions, then what damages did the plaintiff sustain by reason of the detention of the automobile after May 14th, 1964?
" Answer: $427.27. Dissenting: None.
"Dated January 9, 1965 12:57 A.M.
"Clarence Harley, Foreman."
In response to a question by the court as to whether it was their verdict, the jurors answered that they all so agreed; however, no determination was made as to whether all the jurors joined in such response. The judge then directed the clerk to file the verdict, and the jury was discharged. There was no request to have the members of the jury polled.
Subsequently, the defendant moved for a new trial and submitted affidavits of eight jurors, stating in substance that their answer to the second question relating to "new value" was erroneously entered in the special verdict as "No" when it should have been entered as "Yes"; the express purpose of the affidavits was to correct the error made in reporting the answer to the second question.
Another affidavit was submitted by certain jurors, stating in substance that the jury foreman had produced for the jurors' inspection both a salesman's license issued to him and a blank registration card similar to a completed registration card which had been introduced into evidence.
The jury foreman and one other jury member submitted affidavits stating that all the jurors agreed that the answer to the second question should be "No," and that no error had been made in recordation.
The trial court granted a new trial in the interests of justice and asserted the following reasons: (1) That the written verdict is not the actual verdict of the jury in that eight jurors claimed that the answer reported to the second question was erroneous, (2) that certain jury members improperly obtained possession of an automobile salesman's license and of a registration card, neither of which had been introduced into evidence, and examined and used the same in the course of their deliberations, which misconduct had or may have had an effect unfavorable to the defendant, and (3) that the entry of judgment in accordance with the written verdict would result in a miscarriage of justice.
The plaintiff appeals from the order granting a new trial in the interests of justice.
For all our reverence for the jury system, we must not be blind to the fact that a jury is but 12 human beings possessed of all the foibles and flaws of mortal men. Shakespeare touched on this in Measure for Measure (Act 2, Scene 1):
"The jury, passing on the prisoner's life, May in the sworn twelve have a thief or two Guiltier than him they try."
Abraham Lincoln in a letter dated June 12, 1863, to Erastus Corning wrote:
"A jury too frequently has at least one member more ready to hang the panel than to hang the traitor."
Wisconsin has heretofore preserved a major exception to the general rule which bars jurors from invalidating their own verdict. This exception has permitted jurors to show that their verdict was mistakenly recorded.
The principal case which established the exception in Wisconsin is Wolfgram v. Schoepke (1904), 123 Wis. 19, 26, 100 N.W. 1054, where the court stated that jurors could impeach their own verdict by
". . . showing that the words used in conveying it to the court, or enrolling it on the records, by mistake of the person uttering or writing them, fail to express the conclusion reached by all the jurymen."
This exception was acknowledged in State v. Biller (1952), 262 Wis. 472, 476, 55 N.W.2d 414, and also in the recent case of Kink v. Combs (1965), 28 Wis.2d 65, 135 N.W.2d 789. In the latter case, an attempt was made to attack a verdict by presenting an affidavit of a juror to the effect that he had failed to resist because "sheer fatigue." The court stated, at page 78:
"This is an attempt of a juror to impeach his own verdict, and is not countenanced by this court. Only in limited cases, e.g., if a verdict is reported erroneously by clerical error, will jurors be heard to complain that the verdict is in error. Brophy v. Milwaukee Electric Railway Transport Co. (1947), 251 Wis. 558, 30 N.W.2d 76.
" Olson v. Williams (1955), 270 Wis. 57, 70 N.W.2d 10, and a series of Wisconsin cases that precedes it point out the sound reasons of public policy behind this rule. Suffice it to say that if a showing that a juror was fatigued when he arrived at a verdict would result in setting it aside, the finality that we now confidently expect from a jury verdict would be at an end, and the jurors themselves would be harassed endlessly by the loser in his efforts to set aside their decision."
As suggested above, there is a rational and compelling public policy which bars jurors from debasing their own verdict. This rule forecloses jurors from impugning their findings by asserting their own misconduct. Two recent cases reaffirming this long-established general rule are Ken-Crete Products Co. v. State Highway Comm. (1964), 24 Wis.2d 355, 363, 129 N.W.2d 130, and Field v. Vinograd (1960), 10 Wis.2d 500, 511, 103 N.W.2d 671.
"There is sound public policy behind this general rule prohibiting impeachment of their verdict by the jury. The formality and dignity of the court proceedings are intended to provide as appropriate a surrounding as possible for the achievement of justice. The jury is kept apart from influences which might prejudice its decision. If jurors, after being discharged and after mingling with their friends who may have expressed approval or disapproval of the jury's verdict, are to be allowed to impeach that verdict, the unbiased evaluation of the evidence which the solemn court proceedings are intended to facilitate, will have ceased to control decisions. In talking after the trial to those who did not like the verdict, a juror might be inclined to express a wish that it had gone the other way. He may honestly think that if he had it to do over again he would vote differently. He may admit that he would have voted differently if he had known what the legal effect of the verdict would be. It is likely that there should be such reactions in some cases. But such subsequent reactions are not to be allowed to impeach the verdict. If they were allowed, the verdict would cease to be a decisive thing, putting an end to litigation; the jurors would become subjects of post-trial chicanery, improper persuasion, and possibly bribery. In any event, objective discovery of the truth would be hampered, not promoted."
An equally vigorous statement of the policy underlying this salutary rule is contained in Koss v. A. Geo. Schulz Co. (1928), 195 Wis. 243, 251, 218 N.W. 175:
"`Let it once be established that verdicts solemnly made, and publicly returned into court, can be publicly attacked and set aside on the testimony of those who took part in their publication, and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate their finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside the verdict. If evidence thus secured could be used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation, to the destruction of frankness and freedom of discussion and conference.'"
Whenever a court rejects a past precedent, there will be those who will decry the change. The late Roscoe Pound, in his Interpretations of Legal History (1923), said, "Law must be stable and yet it cannot stand still." Upon careful reflection, we have concluded that the continuation of the Wolfgram limitation will cause more injustice than it will cure.
We believe that the public-policy reasons which prompted the court to adopt the general rule foreclosing jurors from stultifying their own verdict applies with equal validity to the claim that an answer has been improperly recorded. We now expressly overrule Wolfgram v. Schoepke and disavow the exception to the general rule which was made in that case. Once the jury has returned its verdict into court and has been discharged, its members may not be permitted to initiate a challenge to such verdict, whether it be based on their own misconduct or a claimed erroneous recordation.
With Wolfgram overruled, there is even greater significance to the proceedings which occur in the courtroom at the time the verdict is returned. As a result of our present ruling, counsel must recognize that belated efforts to attack the recordation will be unavailing and therefore, if any doubt whatsoever exists on this, a polling of the jury should be held. If, as in the case at bar, an attorney is not present when the jury returns its verdict, it will ordinarily be interpreted as a waiver of his right to challenge the accuracy of the inscription.
The situation in which a juror attempts to initiate an attack upon the verdict must be distinguished from the case in which an impropriety was observed by a third person and a report thereof was made to the trial court. Thus, in State v. Sawyer (1953), 263 Wis. 218, 225, 56 N.W.2d 811, after the verdict was returned, the court clerk discovered that he had inadvertently delivered the prosecutor's argument notes to the jury along with the exhibits when the jury retired to commence its deliberations. When the clerk informed the court of this event, it was appropriate for the court to have conducted an inquiry concerning the presence of the prosecutor's notes in the jury room.
Similarly, in a case such as Cullen v. State (1965), 26 Wis.2d 652, 660, 133 N.W.2d 284, the trial court may inquire into an alleged impropriety involving the jury. In the Cullen Case, it appeared that a woman who served as a jury matron was the wife of a prosecution witness. See also State v. Cotter (1952), 262 Wis. 168, 54 N.W.2d 43; Surma v. State (1952), 260 Wis. 510, 51 N.W.2d 47; La Valley v. State (1925), 188 Wis. 68, 205 N.W. 412.
Our ruling terminates the existence of the Wolfgram exception to the general exclusionary rule. We recognize, however, that in some situations (such as Sawyer and Cullen) jurors may properly be subject to interrogation by the court to determine if an irregularity occurred; however, trial courts should limit such inquiries to those cases in which the court is persuaded (1) that substantial personal awareness of the alleged impropriety is within the direct and independent knowledge of one who did not serve as a member of the jury, (2) that such knowledge was not derived by such person from a juror after the jury's discharge, and (3) that the challenge to the integrity of the verdict originated from such person rather than from a juror. Thus, jurors may sometimes be required to confirm or deny someone else's attack upon their verdict, but they themselves may never embark on a course which will impeach their verdict.
In addition to basing his order for a new trial upon the foreman's failure to record the verdict accurately, the trial court also relied upon the fact that two documents which had not been received into evidence were examined by the jurors during their deliberations. There can be no doubt that the jurors were legally foreclosed from disclosing this phase of their deliberations.
In view of our determination that there is no exception as to recordation of the verdict, it follows that the order for a new trial in the interests of justice was based upon an error of law. Under such circumstances, an order for a new trial in the interests of justice may be reversed. Felkl v. Classified Risk Ins. Corp. (1964), 24 Wis.2d 595, 600, 129 N.W.2d 222; Holtz v. Fogarty (1955), 270 Wis. 647, 651, 652, 72 N.W.2d 411; Graff v. Hartford Accident Indemnity Co. (1950), 258 Wis. 22, 28, 44 N.W.2d 565. Upon the remand, the trial court should enter judgment based upon the jury's written verdict.
By the Court. — Order reversed, and cause remanded with directions.