Rasmussen v. Miller, 268 Wis. 436 (2024)

December 7, 1954 —

January 11, 1955.

APPEAL from an order of the circuit court for Dane county: ALVIN C. REIS, Circuit Judge. Affirmed.

For the appellants there was a brief by Aberg, Bell, Blake Conrad and Carroll Metzner, all of Madison, and oral argument by Mr. Metzner.

For the respondent there was a brief by Hall Griffith of Madison, and oral argument by Laurence W. Hall.

These are two personal-injury actions, consolidated for trial, which arose out of an accident involving the automobiles of Irving Rasmussen and Russell N. Miller. In one action Rasmussen is plaintiff and Miller defendant; in the other Miller is plaintiff and Western Casualty Surety Company, liability insurance carrier of Rasmussen, is defendant. The jury returned a special verdict finding Miller 65 per cent negligent and Rasmussen 35 per cent negligent. Ten days after the conclusion of the trial at the time of argument on motions after verdict, counsel for Miller moved for a new trial on the basis of improper conduct of a juror. The motion was granted and an order entered on March 26, 1954, granting a new trial on that ground. Counsel for Rasmussen moved for rehearing on the order, hearing was had, and a second order was granted on May 12, 1954, confirming the original order. Rasmussen and his Insurance Company appeal.

On February 5, 1954, when arguments were made on motions after verdict the trial court advised counsel that the bailiff who had been in charge of the jury during the trial had informed the court verbally that one of the jurors had on two occasions been observed talking to Irving Rasmussen's brother, Edward, who had been a witness on the trial; that the incidents occurred after the case had been submitted to the jury and before a verdict was reached.

Several conferences followed during which the bailiff, Ray T. Dodge, the juror, George Rupp, and Edward Rasmussen were examined by the court. Thereafter the March 26th order was made granting a new trial in the interests of justice on the ground that there had been misconduct on the part of the juror.

On the hearing after the motion for rehearing on the order was filed the sworn testimony of the bailiff, the juror, and Edward Rasmussen was taken. The bailiff testified that around 6 p. m., when he was about to take the jury from the courthouse to the hotel for dinner, one juror was missing. He found the juror in the basem*nt of the courthouse with another man. He could not tell whether they were conversing; could not hear anything they said. He did not know the juror's name; he could not identify Edward Rasmussen as the man who was with him. The juror told him the man was a "customer" or a "relative." Later at the hotel he found the same juror standing in the lobby with the same man. He could not hear that they were talking; "from all appearances, they could have been." He could not identify Edward Rasmussen as the man with the juror. The juror told him it was an "insurance agent." The bailiff did not think he had told the court that the man he saw with the juror was Edward Rasmussen.

Edward Rasmussen testified that on the day in question he took the train to Brooklyn, his home, a little after 5 p. m. and was nowhere in the vicinity of the courthouse or the hotel at the times mentioned by the bailiff.

George Rupp, the juror, testified that he remembered being on the jury, but he could not recall anything about the trial, the case, Edward Rasmussen, or talking to anyone.

In entering the order of May 12th for a new trial the court absolved Edward Rasmussen from any imputation of misconduct.


In its memorandum decision on the motion for rehearing the trial court stated:

"In view of all the statements made by the bailiff herein and by others, before and after the March 26th order, we feel that we now should absolve plaintiff Rasmussen's brother from any imputation of misconduct in connection with conversation or other contact with one of the jurors. . . .

"Thus, the identity of plaintiff's brother has whittled down — to nothingness, it may be assumed. The content of conversation similarly has been reduced to a void.

"Throughout, however, the four statements by the bailiff, one fact remains: The juror was in contact with a man after the case had gone to the jury and it was the same man and it was twice — once in the basem*nt of the courthouse and once at the hotel.

"We cannot dismiss these two meetings as merely casual. It was not merely meeting once in the hall of the courthouse — which nevertheless was the cause of declaring a mistrial a few years ago by this court, the meeting having been even before the case went to the jury.

"Seeing the same man twice, once in the basem*nt of the courthouse and again at the Park hotel, cannot be regarded as coincidence. The alternative to having to give consideration to the matter, is to completely discredit all the statements, oral, written, and under oath, by a court officer, the bailiff. . . .

"It is conceivable that the bailiff was subject to such strain that he created from pure imagination a situation involving a certain juror and someone, twice, upon two perfectly identifiable occasions. It is only conceivable, however — not probable."

The court ordered a new trial under State v. Cotter (1952), 262 Wis. 168, 173, 54 N.W.2d 43, where the following language from La Valley v. State (1925), 188 Wis. 68, 80, 205 N.W. 412, was set forth:

"`And so it is with jury trials. In order that the institution be preserved and its usefulness continued, its deliberations and pronouncements must be kept pure, and untainted not only from all improper influences but from the appearance thereof. It is often said that the jury trial is one of the bulwarks of our liberty. But it will remain so only so long as public confidence in the institution prevails.'"

Appellants contend that no one was prejudiced by the incidents complained of and, under Oborn v. State (1910), 143 Wis. 249, 126 N.W. 737, and other authorities, the verdict should not be disturbed. Attention is also called to sec. 274.37, Stats., which provides:

"No judgment shall be reversed or set aside or new trial granted in any action or proceeding, civil or criminal, on the ground of misdirection of the jury, or the improper admission of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court to which the application is made, after an examination of the entire action or proceeding, it shall appear that the error complained of has affected the substantial rights of the party seeking to reverse or set aside the judgment, or to secure the new trial."

Whether or not injury or injustice has resulted to the litigants by reason of the conduct of this juror is not our primary concern here. Rather, our concern is with the stigma that attaches to the administration of justice under these conditions. Confidence in our judicial system is imperiled if such conduct is countenanced in jury trials. Conduct which if proved would give rise to doubt and disrespect, or the mere appearance of such conduct as will not meet with the approval of public opinion, must be severely condemned. It is only through the granting of a new trial in situations like this, as well as vigilant efforts by the officers of the courts to prevent such occurrences, that public confidence in the jury system may be preserved.

In making the order appealed from, the trial court satisfied the requirements of sec. 270.49 (2), Stats., by setting forth its reasons for so doing, reasons which are entirely in accord with the views of this court.

By the Court. — Order affirmed.

Rasmussen v. Miller, 268 Wis. 436 (2024)


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