Opinion
February 1, 1968. —
February 27, 1968.
APPEAL from an order of the circuit court for Milwaukee county: JOHN A. DECKER, Circuit Judge. Reversed.
For the appellants there was a brief by deVries, Vlasak Schallert, Stephen C. deVries, and Gerald J. Bloch, all of Milwaukee, and oral argument by Stephen C. deVries.
For the respondent there was a brief by Eisenberg Kletzke, attorneys, and Jerome F. Pogodzinski of counsel, all of Milwaukee, and oral argument by Sydney M. Eisenberg.
Action for personal injuries sustained when plaintiff fell from a ladder being held by defendant John Jursik. On April 26, 1966, the jury returned a special verdict, finding that the defendant John Jursik was negligent and that his negligence was causal, jurors Bock and Reineck dissenting to both findings, and finding the plaintiff causally negligent, juror Ward dissenting. The jury apportioned the negligence 60 percent to the defendant and 40 percent to the plaintiff, jurors Bock and Reineck again dissenting. Damages were determined by the jury to be $8,895.92, juror Ward dissenting to the amount awarded.
In its memorandum opinion on motions after verdict, filed May 16, 1966, the trial court held that the verdict was fatally defective under the rule of Fleischhacker v. State Farm Mut. Automobile Ins. Co. (1956), 274 Wis. 215, 79 N.W.2d 817, and Scipior v. Shea (1948), 252 Wis. 185, 31 N.W.2d 199, which interpret sec. 270.25 (1), Stats., to require the same 10 jurors to agree on every question it is necessary for them to consider in answering the question of comparative negligence. Since jurors Reineck and Bock dissented from the jury's answer to negligence and causation questions regarding the defendant, believing him not to be negligent, and since juror Ward dissented to the jury's answer to negligence and causation questions regarding plaintiff's negligence, believing him not to be negligent, only nine jurors were qualified to answer the comparison question. The trial court ordered a new trial on all issues.
"A verdict agreed to by five-sixths of the jurors shall be the verdict of the jury. If more than one question must be answered to arrive at a verdict on the same cause of action, the same five-sixths of the jurors must agree on all such questions."
Subsequent to its order, the supreme court decided the case of Vogt v. Chicago, M., St. P. P.R.R. (1967), 35 Wis.2d 716, 151 N.W.2d 713, in which the following situation was presented. The jury verdict found both the deceased and the defendant causally negligent. One juror dissented to the finding of negligence on the part of the deceased and to the finding that such negligence was a cause. He did not dissent to the assessment of five percent of the causal negligence to the decedent. Two different jurors dissented to the amount determined as pecuniary loss. Judgment was entered on the verdict and the defendants appealed.
The supreme court affirmed the trial court reasoning that the juror who dissented to the finding of the plaintiffs contributory negligence must have felt that the verdict should have been in the plaintiff's favor more so than it was and that the defendant should not be allowed to take advantage of a dissent adverse to his interests in claiming that a verdict violated the five-sixths rule.
Believing that the Vogt Case might have application to the case at bar, the trial court on July 24, 1967, issued an order on its own motion bringing on for hearing the question whether it had jurisdiction to reconsider its order of May 16, 1966, and whether that order should be vacated in the light of the Vogt Case. On August 7, 1967, the court held that it had jurisdiction under sec. 269.46 (1), Stats., to vacate the order May 16, 1966 vacated the order, and granted a new trial on the issue of damages only. From this order the defendants appeal.
"Relief form judgments, orders and stipulations; review of judgments and orders. (1) The court may, upon notice and just terms at any time within one year after notice thereof, relieve a party from a judgment, order, stipulation or other proceeding against him obtained, through his mistake, inadvertence, surprise or excusable neglect and may supply an omission in any proceeding. In addition to the required affidavits, all motions to vacate a Judgment entered upon default or cognovit and to obtain a trial upon the merits shall be accompanied by a proposed verified answer disclosing a defense."
Defendants contend on appeal that (1) the trial court was without jurisdiction on August 7, 1967, to vacate his order from May 16, 1966, for the reason that more than one year had elapsed since the plaintiff had notice of the order, and (2) even if the trial court had jurisdiction to do so, it was in error in holding that a verdict can be found partially defective and partially valid when subjected to the challenge under the five-sixths rule.
Not raised by either party is whether a modification in the law by a subsequent decision of a court of last resort is a proper ground for relief under sec. 269.46 (1), Stats. The trial court was apparently persuaded that its earlier order was based on a mistake of law within the rule of Paschong v. Hollenbeck (1961), 13 Wis.2d 415, 108 N.W.2d 668. That case, however, held that a litigant's application for relief from a judgment because of a mistake of law on the part of his attorney is a proper subject for the exercise of the trial court's discretion under the statute. The statute itself has reference exclusively to the mistake, inadvertence, surprise, and excusable neglect of a party resulting in a judgment being entered against him which it might be inequitable to enforce. If a point is briefed, argued, and subsequently decided under the law then existing, it cannot be that a subsequent decision of a court of last resort that modifies the applicable law creates one of these situations unless the court is to create a legal fiction. Had the trial court erred in interpreting existing law, it would have no authority under sec. 269.46 (1) to review and reverse its decision. In re Coloma State Bank (1938), 229 Wis. 475, 282 N.W. 568; Scheer v. Keown (1874), 34 Wis. 349. We do not think the statute contemplates the relief desired.
We are of the opinion that a modification in the law by a subsequent decision of a court of last resort is not a proper ground for relief under sec. 269.46 (1), Stats. If such relief were appropriate under sec. 269.46 (1) the result would be the relitigation of many cases following a modification in the law. We believe that retroactive application should be determined on the merits of each individual case.
Having determined that the trial court was without jurisdiction to vacate its order of May 16, 1966, we do not reach the merits of the issues raised by the defendants.
By the Court. — Order reversed.