omitted unless before the jury retires he demands its submission to the jury. As to an issue omitted without such demand the court may make a finding; or, if it fails to do so, it shall be deemed to have made a finding in accord with the judgment on the special verdict.

(b) General Verdict Accompanied by Answer to Interrogatories. The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict. The court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to make written answers and to render a general verdict. When the general verdict and the answers are harmonious, the court shall direct the entry of the appropriate judgment upon the verdict and answers. When the answers are consistent with each other but one or more is inconsistent with the general verdict, the court may direct the entry of judgment in accordance with the answers, notwithstanding the general verdict or may return the jury for further consideration of its answers and verdict or may order a new trial. When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, the court shall not direct the entry of judgment but may return the jury for further consideration of its answers and verdict or may order a new trial.1

SECTION 5

MOTIONS AFTER VERDICT

(1) Motion for a new trial

IN connection with various matters heretofore dealt with in this book, reference has been made to the possibility that a litigant against whom a verdict has been rendered may be able to secure a new trial on such grounds, for example, as improper selection of the jury, the insufficiency of the evidence to support the verdict, or misconduct of the jury. In this section, the procedure in securing a new trial will be considered in further detail. We shall first consider briefly the history of this procedure, and then outline the grounds upon which the court may order a new trial, dealing with certain of those grounds in some detail. We shall then consider whether a new trial will be ordered even if grounds, therefor exist where the party seeking it made no objections at the trial, as well as the question of how far prejudice to the party seeking the new trial must be shown. Finally,

See Wis. Stat. (1943) §§ 270.27-270.28, 270.30; Green, "A New Development in Jury Trial," 13 A. B. A. J. 715 (1927).

we shall consider the circumstances under which a court may grant a partial new trial only, and various devices which have been employed to avoid the necessity for a new trial.

GRAHAM, NEW TRIALS (1834) 2-7.1

WHEN, in what court in particular, and for what causes new trials originated, are subjects involved in impenetrable obscurity by the lapse of ages. It would appear, that as early as 1351, a venire de novo was directed for the misbehaviour of the jury. A second instance is found in the year books about 1410, occasioned by the misconduct of the prevailing party in tampering with the jury. During a period of about 250 years that succeeded, scarcely a vestige of the practice of the court respecting new trials remains. . . . 1598, whatever was alleged as cause for a new trial, must have appeared of record. The first inroad upon this practice was made by the common pleas, upon certificate of the judge that the verdict passed against his opinion, as appears from Slade's case,2 in which Bacon, J., stated, that judgment had been arrested in the common pleas on such certificates. And Rolle, J., held, the judgment ought not to be stayed, though it had been done in the common pleas. Up to Slade's case in 1648, it would appear that in the king's bench no attempt had ever been made to stay a judgment, or direct a venire de novo, except for matter of record, and consequently, until then, new trials upon erroneous verdicts, or for any other cause than gross misbehaviour of jurors, or of the parties, was a thing unknown. It is conceded, that the first cause in which a new trial is reported to have been granted on the merits is, Wood v. Gunston in 1655,3 after a trial at bar, in a case of slander, and on the ground of excessive damages. All the subsequent decisions, where the judges have taken occasion to refer to the origin of new trials for erroneous verdicts, point to this case. Shortly before this, in the case of Slade, Rolle, J., had observed, that though it had been done in the common pleas, it was too arbitrary for them (in K. B.) to do it. And he adds, "you may have your attaint against the jury, and there is no other remedy in law for you; but it were good to advise the party to suffer a new trial for better satisfaction."

But a precedent having once been established, the rigid practice of the court suddenly gave way. That relief which had been hitherto regarded as unreasonable to ask, and too arbitrary to grant, became a favorite with the judges, and a system of judicial decision gradu

1 Footnotes omitted.

2 Style 138 (K. B. 1648).

3 P. 423, infra.

ally followed, built up upon liberal and enlightened principles, greatly tending to the advancement of justice.

Prior to this, the party suffering injustice by a verdict, might resort to his writ of attaint, founded upon an allegation of perjury in the jury, having found against law or evidence-a remedy given against the recognitors of assize alone in the first instance, but extended subsequently by various enactments to other inquests. It consisted in trying the jury who rendered the alleged erroneous verdict, by another jury of double their number, whose verdict, if it falsified the former, was followed by infamy, fine, imprisonment, forfeiture of goods, with other severe penalties, affording at the best, a barbarous and ineffectual remedy. In cases not provided for by attaint, the complainant was compelled to resort to equity, where a new trial was directed, under the penalty of a perpetual injunction if the adverse party should refuse; an expensive, cumbrous, and awkward expedient. But when the courts of law began to interfere, and the practice of new trials acquired consistence and facility, the writ of attaint fell instantly into disuse, and courts of equity became gradually less frequented. "What bestowed additional value upon this amelioration of the practice was, the multiplicity and intricacy of causes, originating in the extension of commerce, and its necessary consequences, luxury and refinement. . .

It followed, as a necessary consequence, that the causes of new trials were no longer confined to the record. As the modern practice called into exercise a power of courts of law that formerly lay dormant, it proceeds upon new grounds, being matters dehors the recorda circumstance tending strongly to discriminate between a venire de novo, awarded upon reversing a judgment for error on the record, and a new trial, founded on incidents developed in the course of what is technically called a trial, beginning with the summoning of the jury, and ending with their verdict. The former comprises writs of error with the subsequent proceedings, is confined to the record, and contemplates an avoidance of the judgments. The latter consists of mere motions, on circumstances out of the record, and having for its object to set aside the verdict.

1 This procedure of attaint as a method of controlling the jury was in use in America in colonial times. Gradually, however, it was superseded by the motion for a new trial.

2 As to injunctions against the enforcement of judgments at law, see Ch. XI, infra.

3 A venire de novo is usually awarded because of a defect in the verdict, either on writ of error or on a motion in arrest of judgment. A new trial is usually granted on motion, but may be granted on writ of error when a trial error is made part of the technical record by a bill of exceptions.

GROUNDS FOR NEW TRIAL.

In general, a new trial is grantable today only for errors of law or fact which do not appear in the technical record, that is the pleadings, verdict and judgment. Ordinarily these will be errors made at the trial of the cause, but under some circumstances a new trial may be granted where there has been no error at the trial at all, and because of circumstances which had nothing to do with the trial, as in the case of a new trial because of newly-discovered evidence. Where the alleged error appears on the technical record, there may be ground for motions based on the pleadings such as the motion in arrest of judgment or for judgment non obstante veredicto, to be considered hereafter, or for a motion for a venire de novo, but not for a new trial.

The possible grounds for granting a new trial are very numerous. Without attempting a complete enumeration, we may refer to certain of the more important of these.

1. Grounds relating to the jury. It may be ground for a new trial that the jury was improperly impanelled, or that persons disqualified as jurors were allowed to serve. So also, misconduct by the jury or by some of the jurors may be a ground. For example, under the old common law, any separation of the jurors after they had retired to consider their verdict was a ground for setting it aside, although today the rule is less 'strict, and minor misconduct of one or two jurors in this regard, not shown to have resulted in prejudice to the party against whom the verdict was given, does not require a new trial in most states. Again, the presence of an unauthorized person in the jury-room may be ground for a new trial; and if that person is the trial judge, it has been held that no prejudice to the party moving therefor need be shown.2 Attempts by a party to influence a juror or jurors, as for example the treating of the jury by a party or his representative, may also require that the verdict be set aside. If a juror talks with a third person during the trial, this may be ground for a new trial, and it clearly will be in most states if the conversation takes place after the jury has retired. Moreover, in some states it is improper for the jury to take to the jury-room any papers, even if introduced in evidence, although the more modern

1 See Newell v. Ayer, 32 Me. 334 (1850) (two jurors left the jury-room "for a minute or two" but held no conversation with anyone); City of New Albany v. McCulloch, 127 Ind. 500 (1891) (one juror left the jury-room for half an hour).

2 See Benson v. Clark, 1 Cow. 258 (N. Y. 1823); State v. Murphy, 17 N. D. 48 (1908). Contra: Ayrhart v. Wilhelmy, 135 Ia. 290, 295 (1907). Compare Nichols v. Nichols, 136 Mass. 256 (1884), where a new trial was refused although a physician had entered the jury-room to attend a sick juror.

rule seems to be "to send to the jury-room all documents and papers, other than depositions, which have been read in evidence." 1 It would seem that the jury should be allowed to take with them any such documents as well as a transcript of the evidence (including depositions) and of the judge's charge, if available. In any event, however, it will not be ground for a new trial that immaterial papers not furnished by a party have been taken into the jury-room. Finally, as we have already seen, it will be ground for a new trial that the jury reached a verdict by chance or compromise, provided that this can be shown otherwise than by the testimony of the jurors themselves.2

2. Surprise at the trial. It may be ground for a new trial that the moving party or his counsel were taken by surprise at the trial, provided that this was not due to their own negligence. Ordinarily the remedy here is to ask for a postponement, and failure to do so will jeopardize the possibility of securing a new trial later. Even at common law, there was considerable possibility that the plaintiff would, be surprised by the line of defense taken by the defendant, especially under the very broad scope of the general issue in certain actions prior to the Hilary Rules. Today there is a similar possibility of surprise to the defendant in jurisdictions where the plaintiff need not reply to an affirmative defense but may treat it as traversed or as confessed and avoided by new matter at the trial. Surprise may also result from the absence of expected witnesses, from amendments to the pleadings allowed at the trial, or from various other circumstances. Where the surprise is due to the fraudulent or otherwise improper conduct of the opposing party or his counsel, the court will be especially ready to grant a new trial.

3. Errors in the admission or rejection of testimony. Under the Anglo-American system of trial at law, the judge has to rule on the admissibility of the evidence offered by either party if the other party objects thereto. Error in such rulings may be ground for a new trial, subject to the principles with regard to prejudicial error to be considered later in this section. The grounds for objecting to the admission of testimony are considered in detail in the course on Evidence. Errors in rulings on evidence are among the most common grounds for new trials in practice.

4. Grounds involving the argument and conduct of counsel. Denial to a party of the right to have his counsel argue to the jury may be ground for a new trial,3 but the action of the trial judge in

12 Thompson, Trials (2d ed. 1912) 1855 (italics in original).

2 See pp. 379-381, supra.

3 Cf. Powell v. Alabama, 287 U. S. 45 (1932) (one of the Scottsboro cases). holding that the right to be represented by counsel in a criminal case is guaranteed by the Fourteenth Amendment.