COURT OF APPEALS DECISION DATED AND RELEASED February 12, 1997 |
NOTICE |
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Appeals. See § 808.10 and
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This opinion is subject to
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No. 95-0793
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
JEFFREY DAGGETT and
DENISE
DAGGETT,
Plaintiffs-Appellants,
v.
WISCONSIN ELECTRIC
POWER
COMPANY,
Defendant-Respondent.
APPEAL from a judgment
of the circuit court for Sheboygan County:
GARY LANGHOFF, Judge. Affirmed.
Before Snyder, P.J.,
Brown and Nettesheim JJ.
NETTESHEIM, J. This
is a “stray voltage” case. Jeffrey and
Denise Daggett appeal from a judgment dismissing their action against Wisconsin
Electric Power Company (WEPCo). The
dismissal followed a jury determination that WEPCo did not negligently cause
damage to the Daggetts’ cattle herd by failing to adequately contain “stray
voltage” from WEPCo’s primary electrical distribution system located on the
Daggetts’ farm. The jury additionally
determined that the Daggetts were 100% contributorily causally negligent and
that they had not been damaged.
On appeal, the Daggetts
raise various issues.[1] However, we conclude that this case is
governed by only one issue: the
Daggetts' claim that the jury's answers are inconsistent. We conclude that the answers are
consistent. In addition, we conclude
that the evidence supports the jury's finding that the Daggetts were not
damaged, even though the Daggetts do not make this particular argument in their
sufficiency of evidence challenge. We
therefore affirm the judgment.
FACTS
The facts relevant to
the various appellate issues which the Daggetts raise are lengthy and
detailed. However, the facts relevant
to the issue upon which we base our decision are not.
The Daggetts alleged
that WEPCo “constructed, maintained, operated and repaired its electrical
distribution system in such a manner as to cause a nuisance” and that WEPCo had
“failed to provide reasonably adequate electrical service to the plaintiffs ¼.” The Daggetts sought compensation for claimed
damage to their dairy herd, loss of profit, annoyance and inconvenience. The case was tried before a jury over a
sixteen-day period. At the close of the
evidence, the trial court submitted a nine-question special verdict to the
jury. The relevant questions and the
answers are as follows:[2]
QUESTION 1: Was [WEPCo]
negligent in failing to provide reasonably adequate service and facilities to
the Jeffrey and Denise Daggett farm?
ANSWER:
No.
¼.
QUESTION 3: Did [WEPCo] distribute electrical energy to the Jeffrey and
Denise Daggett farm in a manner that created a nuisance?
ANSWER:
No.
¼.
QUESTION 5: Were [the Daggetts]
negligent with respect to the operation and/or maintenance of their farm
electrical service or equipment?
ANSWER:
Yes.
¼.
QUESTION 6: Was such negligence
a cause of damages to the [the Daggetts]?
ANSWER: Yes.
¼.
QUESTION 7: Assuming the total
causal negligence which caused plaintiff’s damages to be 100%, what percentage
thereof do you attribute to:
(a) [WEPCo] 0%
(b) [The
Daggetts] 100%
TOTAL 100%
¼.
QUESTION 8: What sum of money, if any, will fairly and reasonably
compensate [the Daggetts] for:
(c) economic
loss $ 0
(d) annoyance
and $ 0
inconvenience
Regardless of how you have answered the preceding questions, please
answer this question:
QUESTION 9: Did [the Daggetts]
know, or should they with the exercise of reasonable care, have known before
November 19, 1984, that [WEPCo’s] primary distribution system serving their
farm was a cause of damage to their operation?
ANSWER: Yes.
As
the foregoing reveals, the jury unanimously found against the Daggetts as to
each question submitted.
The Daggetts filed a
postverdict motion raising various issues, including a claim that the jury
answers were inconsistent. The trial
court denied the motion and entered judgment dismissing the Daggetts' action. The Daggetts appeal.
DISCUSSION
Inconsistent Jury Verdict
An inconsistent verdict
is one containing “jury answers which are logically repugnant to one another.” Fondell v. Lucky Stores, Inc., 85
Wis.2d 220, 228, 270 N.W.2d 205, 210 (1978).
The Daggetts' argument that the verdict is inconsistent rests upon the
jury's answers to three nondamage questions:
the contributory negligence causation question, the comparative
negligence question, and the statute of limitations question. As the special verdict reveals, all of these
questions were framed in terms which presumed damage to the Daggetts. By answering these questions, the Daggetts
reason that the jury was concluding that they were damaged. Thus, the Daggetts contend that the jury's
further answer of zero damages is inconsistent.
We reject the Daggetts'
argument. We first observe that the
Daggetts' argument premised upon the comparative negligence question is a
nonstarter since the jury should not have even answered that question. The jury had already determined that WEPCo
was not negligent and had not created a nuisance. The preface to the comparative negligence question expressly
directed the jury to skip the question if it had previously determined that
WEPCo's negligence or nuisance was not causal.
Since there was no negligence to compare, the jury should not have
answered the question.[3]
Even if we overlook the
foregoing, we conclude that the jury's answers to the questions about
comparative negligence, contributory negligence causation, and the statute of
limitations are not inconsistent with the jury's failure to award damages. The questions upon which the Daggetts rely
did not ask whether the Daggetts had been damaged. Rather, these questions were directed at other matters also at
issue in the case: whether the
Daggetts' contributory negligence was causal, the degree of the Daggetts'
contributory negligence and whether the Daggetts' action was timely in light of
their belief that they had been damaged.
We properly examine a
jury's answer to a particular verdict question in light of the verdict as a
whole and in light of the subject matter to which each question was
directed. The Daggetts are attempting
to transform the jury's answers as to causation, comparative negligence and
statute of limitations into substantive findings that they were damaged. However, that was not the purpose of those
questions and that was not the focus of the instructions which accompanied
those questions. The issue of the
Daggetts' alleged damage was reserved for Question 8, the damage question. Only that question focused the jury's
attention squarely on the damage issue.[4] Viewing each question in its proper
perspective, we conclude that the corresponding answers are not inconsistent.[5]
The Daggetts also rely
on Westfall v. Kottke, 110 Wis.2d 86, 328 N.W.2d 481 (1983). There, the plaintiff was injured when his
motorcycle hit the defendant and his tractor.
See id. at 90, 328 N.W.2d at 484. The jury found both the plaintiff and the
defendant negligent but also found that the defendant’s negligence was not
causal. See id. at
91, 328 N.W.2d at 485. Nevertheless,
the jury apportioned 10% of the negligence to the defendant and 90% to the
plaintiff. See id.
The supreme court concluded that “the inconsistency on the face of the verdict
was irreconcilable.” Id.
at 100, 328 N.W.2d at 489.[6]
Clearly, a verdict which
finds a party not negligent on the one hand, but attributes a portion of the
negligence to the exonerated party on the other, is irreconcilable. As to both questions, the jury is focusing
on the question of the party's alleged negligence. Such a verdict which compares “apples and apples” and provides
contradicting answers is clearly suspect.
Here, however, the
jury's answers to the questions upon which the Daggetts rely were not focused
on damages. Rather, the questions
focused on causation, comparative negligence and statute of limitations. Measured against damages, these concepts are
“apples and oranges.” The jury's
answers stand comfortably beside each other.
We conclude that the
jury did not return an inconsistent verdict.
Damage Award: Sufficiency of Evidence
Although the Daggetts
raise sufficiency of evidence arguments, they do not specifically challenge the
jury's failure to award damages.
Nonetheless WEPCo addresses this issue in its respondent's brief. We only briefly address this question.
We will sustain a jury
verdict if there is any credible evidence to support it. See Nieuwendorp v. American
Family Ins. Co., 191 Wis.2d 462, 472, 529 N.W.2d 594, 598 (1995). We review the evidence in a light most
favorable to the verdict, and when more than one inference may be drawn from
the evidence, we are bound to accept the inference drawn by the jury. See id.
We have examined the
evidentiary record in this case. We
will not repeat the voluminous material presented by both the Daggetts and
WEPCo on this question. Suffice it to
say that the jury was presented with extensive evidence on both sides of the
damage issue. The Daggetts' evidence
supported their claim that WEPCo's distribution system caused their claimed
damage. WEPCo's evidence contended that
the Daggetts were not damaged or that the Daggetts' own electrical operations,
or “on-farm” sources of stray voltage rather than WEPCo's distribution system,
caused any alleged damage. In short,
the sharp conflicting evidence on this issue made this a jury question. Since certain of the evidence supports
WEPCo's claim that the Daggetts were not damaged, we affirm.
CONCLUSION
We conclude that the jury's answers to the
special verdict questions are not inconsistent. We also hold that the evidence supports the jury's decision not
to award damages. Since the jury has
determined that the Daggetts were not damaged, we need not address the other
challenges raised by the Daggetts. See Gross v. Hoffman,
227 Wis. 296, 300, 277 N.W. 663, 665 (1938).
Accordingly, we affirm the judgment.
By the Court.—Judgment
affirmed.
Not recommended for
publication in the official reports.
[1] The Daggetts claim that the trial court erred by: (1) failing to apply a higher standard of care to WEPCo, (2) including a statute of limitations question on the special verdict, and (3) instructing the jury as to the statute of limitations. Additionally, the Daggetts contend that the jury's answers are not supported by the evidence.
[2] Questions 2 and 4 are omitted because the jury was instructed not to respond to them if they had answered affirmatively to Questions 1 and 3.
[3] We note that the jury's answer to the comparative negligence question, although unnecessary, is in keeping with its other answers. The jury had previously exonerated WEPCo of all alleged wrongdoing and instead had assessed all of the fault to the Daggetts. The answer in the comparative negligence question assessing 100% of the causal negligence to the Daggetts is in harmony with the jury's answers to the previous questions.
[4] We also observe that the damage question (Question 8) was prefaced with the admonition: “Regardless of how you have answered the preceding questions, please answer this question.” This reasonably alerted the jury that the prior questions were aimed at other matters in issue. And, although the statute of limitations question followed the damage question, we are not persuaded that a reasonable jury would construe this further question as a damages-related question—particularly since the jury had already answered as to damages.
[5] We note that the language of the causation and comparative negligence questions upon which the Daggetts rest their argument is in keeping with the language suggested by the comments of the Uniform Civil Jury Instructions Committee as to similar special verdict questions. See, e.g., Wis J I—Civil 1390 (Questions 3 and 4); Wis J I—Civil 1723 (Questions 2, 4, 8, 9 & 10); Wis J I—Civil 1592 (Question 2).
[6] A typical inconsistent verdict is one which exonerates a party as to causal negligence but then attributes a portion of the damages to such party. See Statz v. Pohl, 266 Wis. 23, 28-29, 62 N.W.2d 556, 558-59 (1954); Jahnke v. Smith, 56 Wis.2d 642, 647, 203 N.W.2d 67, 70 (1973); Ollinger v. Grall, 80 Wis.2d 213, 217-18, 258 N.W.2d 693, 696 (1977); D’Huyvetter v. A.O. Smith Harvestore Prods., 164 Wis.2d 306, 337-40, 475 N.W.2d 587, 599-600 (Ct. App. 1991).