Summary
In Schimke v. Milwaukee Suburban Transport Corp., 34 Wis.2d 317, 149 N.W.2d 659 (1967), this court declined to review the contention that a mistrial should have been granted due to illness of some of the jurors, where the record on appeal did not contain a transcript or other report of the pertinent facts.
Summary of this case from Johnson v. StateOpinion
February 27, 1967. —
April 11, 1967.
APPEAL from a judgment of the circuit court for Milwaukee county: JOHN A. DECKER, Circuit Judge. Affirmed.
For the appellants there was a brief by Kivett Kasdorf, attorneys, and John J. Romann of counsel, all of Milwaukee, and oral argument by Mr. Romann.
For the respondent there was a brief and oral argument by Irving W. Zirbel of Milwaukee.
This is a negligence action for personal injuries sustained by a pedestrian who was struck by a public transportation bus on a city street in Milwaukee. The jury returned a verdict of $10,183.43 for the plaintiff and found the defendants 100 percent causally negligent.
The record on appeal does not contain a transcript of the testimony. The issue presented involves a claim that irregularities may have affected the jury's deliberations.
The verdict was submitted shortly before noon on April 28, 1966. In midafternoon the jury notified the bailiff, by means of a buzzer system, that it had reached a verdict. The lawyers for the parties and the judge had left the courtroom and the bailiff proceeded to assemble them. Before the judge and the attorneys returned the bailiff was notified that one of the jurors was ill. This juror was taken to the judge's chambers and later conveyed to a hospital by ambulance. The attorneys stipulated that the verdict could be received although only 11 would be in attendance in the courtroom. It was then learned that a second juror also was ill but this juror was able to regain her composure sufficiently to return to the jury box. By this time the bailiff was also indisposed and the judge called the jurors and received the unanimous verdict without a motion or objection by any of the parties.
After the verdict had been received and the jury returned to the jury room, a third juror felt ill but was able to return to his home without incident. It was later suspected that the cause of the jurors' and bailiff's illness was food poisoning from chocolate eclairs given to them at their noon lunch.
As a part of the defendants' motions after verdict the defendants ask for a new trial in the interest of justice because the deliberations resulting in the verdict were adversely affected by the physical condition of several of the jurors.
Several other motions were presented as a part of the motions after verdict but the adverse rulings as to these motions have not been assigned as error.
The trial court denied the defendants' motions after verdict and ordered judgment on the verdict. The defendants appeal from the judgment.
The sole issue is whether the trial court abused its discretion in refusing to order a new trial in the interests of justice because of the physical condition of the jurors.
While it is true as the defendants contend, "[a] juror should, of course, be free from such physical infirmities and mental defects as will interfere with or preclude the proper discharge of his duties" from the record before us, it cannot be said with any degree of certainty that illness affected the deliberations of any of the jurors.
31 Am. Jur., Jury, p. 145, sec. 166.
The trial judge in the memorandum opinion on motions after verdict stated:
"The illness occurred after a verdict had been reached. I see nothing, and have no evidence, nor have I even a suspicion that the illness in any way befell any of these jurors prior to arriving at a verdict, or affected their verdict in any way. Therefore, I feel that the verdict in no way reflects any incapacity on the part of the jurors, either individually or collectively. There are no dissents to the verdict. Two of the sick jurors were in attendance at the time that the verdict was received, and capable of discussing matters with the Court. The interests of justice, in the Court's opinion, require no concern with that matter in respect to this verdict."
The record before this court contains no transcript of the proceedings, nor any indication that any notes, minutes or record of any kind were taken concerning the facts involving the sick jurors. There is, therefore, no basis upon which this court can review the ruling of the trial court. The rule is well established that the review of the supreme court is limited to the record; we are powerless to review a question of fact which is based upon testimony or other acceptable information not preserved on appeal. Stelloh v. Liban (1963), 21 Wis.2d 119, 122, 124 N.W.2d 101; Gray v. Wisconsin Telephone Co. (1966), 30 Wis.2d 237, 242, 243, 140 N.W.2d 203.
Since we have no basis for review other than the trial court's memorandum, we cannot say the trial court abused its discretion in not granting the motion for a new trial in the interests of justice.
Even if this court were to assume that one or more of the jurors were ill during deliberations, only conjecture can serve to determine the effect, if any, and the direction, if any, of that effect upon the verdict. The record does not reveal any attempt by the defendants to poll the jury, nor a motion for mistrial, nor any permissible post examination of any of the jurors to determine the character of illness nor its effect on any of the jurors. There just is no reliable basis in the record upon which the validity of this verdict can be attacked.
Kink v. Combs (1965), 28 Wis.2d 65, 78, 135 N.W.2d 789; Ford Motor Credit Co. v. Amodt (1966), 29 Wis.2d 441, 447, 139 N.W.2d 6.
The cases cited by the defendants, in the main, involve outside influences which could have or did exert a partisan influence upon the jury before or during their deliberations. There is not even a suggestion of partisan influence in the record before us.
By the Court. — Judgment affirmed.
HANSEN, J., took no part.