Harbison v. Briggs Bros. Paint Mfg. Co.

354 S.W.2d 464, 209 Tenn. 534, 13 McCanless 534, 1962 Tenn. LEXIS 387

• Court: Tennessee Supreme Court
• Decided: February 8, 1962
• Status: Published

Opinions

MR. Justice Felts

delivered the opinion of the Court.

This was an action at law in tort for personal injuries. The Trial Judge entered a judgment of dismissal, upon the jury’s response to a single interrogatory submitted by him to them. The Court of Appeals held this was error, but harmless, and affirmed. We granted plaintiff’s petition for certiorari, and the case has been heard here.

The action was brought by Harbison against the Paint Company for damages for injuries alleged to have been caused blm by its negligence. He averred it sold him a can of liquid “bug killer” to be used in killing fleas in the basement of a residence; and that when he undertook to use it for that purpose, such liquid being dangerously inflammable, exploded, burst into flames, and severely burned him.

The negligence charged was that defendant sold him this highly inflammable liquid without warning him of its dangerous nature, and without having put on the can a label indicating that such liquid was dangerously inflammable, in violation of the statutes and of the regulations of the Fire Marshal. Defendant pleaded the general issue of not guilty.

Plaintiff demanded a jury, and the case was tried before the judge and jury, the trial commencing Thursday, November 19, and ending Monday, November 23, 1959. Each side adduced evidence to support his contentions. The pleadings and the evidence presented these sharply contested issues of fact:

(1) Whether or not defendant sold and delivered to plaintiff the can of liquid in controversy; (2) whether or not defendant was guilty of negligence proximately causing plaintiff’s injuries; (3) whether or not plaintiff was guilty of proximate contributory negligence; and (4) whether or not plaintiff suffered the damages in the sum claimed, or in any sum.

At the close of the evidence, there was no motion for a directed verdict. The Trial Judge did not submit the case to the jury, either generally, or specially upon these litigated issues of fact. Instead, over plaintiff’s objection, His Honor submitted only one interrogatory asking the jury to answer issue (1), telling them if they answered it “No,” in favor of defendant, that would end the case, but if they answered “Yes,” in favor of plaintiff, they would have to consider additional issues that would be submitted to them. His instructions to them were as follows:

THE COURT: Gentlemen of the Jury, the Court in its sound discretion, has decided to submit to you a special issue in this case now on trial in which Jim Harbison is the plaintiff, and Briggs Brothers Paint Company, Incorporated, is the defendant, and in which the plaintiff sues the defendant for $50,000 damages for alleged personal injuries. The special issue which is submitted by the Court, and which I am going to hand you, is as follows:

“Did or did not the plaintiff, on July 9,1958, receive a can with the words, ‘Bug killer’ on it marked Exhibit 2 to the plaintiff’s direct examination, containing a liquid product mixed by the defendant Company, its agents or servants, and delivered by its agents and servants.

“Now, at the bottom I have placed these words, ‘We find for the Plaintiff,’ and answer Yes, or ‘We find for the defendant,’ and answer no.

“I charge you further that if you should return a verdict for the plaintiff on this issue — that is, that you find the plaintiff did receive such a can, and so forth, then there will be additional issues to be submitted to you, and which arise from the pleadings in the case. If, on the contrary, you should return a verdict for the defendant, on the issue now submitted to you, — that is, that the plaintiff did not receive such a can, and so forth, then that verdict would be con-elusive of the case, and the legal effect would be to exonerate the defendant from liability.”

Under these instructions, the jury retired to their deliberations, and after having done so, returned into court and reported that they had found issue (1) in favor of defendant and answered: “No.” The Trial Judge accepted this response on issue (1), with the other issues undetermined, and entered judgment upon it dismissing plaintiff’s suit.

Plaintiff appealed in error to the Court of Appeals and assigned errors upon this action of the Trial Judge in submitting, not the whole case, but only this one issue with the above instruction, to the jury, and in dismissing his suit upon the jury’s response to this one issue. He insisted such action was harmful and reversible error because:

(1) Its effect was to upset the freedom and impartiality of the jury, since they had served longer than the regular term of jury service, and were impatient and anxious to be relieved, and when they were told that by finding for defendant they could at once relieve themselves, but if they found for plaintiff they would be further held to consider additional questions to be submitted, this led them to find for defendant as the shortest and easiest way out.

(2) In these circumstances, the partial manner in which this case was submitted to the jury deprived plaintiff of his constitutional right of trial by jury; that is, his right to have a free and impartial jury, under proper instructions by the judge as to the law, determine all the controverted issues of fact in the case.

The Court of Appeals held that our statute (hereinafter quoted), providing for submission of special issues to the jury, did not authorize such submission “in piecemeal,” one issue at a time; that all of the issues should have been submitted together; but that this error was harmless under our harmless error statute (T.C.A. sec. 27-117), because the jury’s negative response to this one issue determined the whole case and rendered all other issues immaterial.

Plaintiff here contends that while the Court of Appeals properly held that the Trial Judge erred in submitting only the one issue and in giving this instruction to the jury, that Court erred in holding such error was harmless, and should have held that it deprived plaintiff of his constitutional right of trial by jury and was not saved by the harmless error statute.

The right of trial by jury, the most valuable right in our Bill of Rights, is guaranteed by our Constitution (Art. 1, sec. 6) in these words: “That the right of trial by jury shall remain inviolate * * And it is further safeguarded by a number of other provisions of our Constitution.¹

The right of trial by jury, as thus guaranteed by our Constitution, is the right as to existed at common law up to the time of our separation from England and the formation of our Constitution. Garner v. State, 13 Tenn. 160, 176-178; State v. Sexton, 121 Tenn. 35, 41, 114 S.W. 494; Manning v. State, 155 Tenn. 266, 275, 292 S.W. 451.

That was the right to have a jury trial in civil actions and criminal prosecutions at common law. It did not extend to suits of an equitable nature in a court of chancery, the right to a jury trial in such suits being conferred only by statute (T.C.A. secs. 21-1011 to 21-1016), not guaranteed by the Constitution. Hunt v. Hunt, 169 Tenn. 1,10-11, 80 S W.2d 666; Pass v. State, 181 Tenn. 613, 617, 184 SW.2d 1; Moore v. Mitchell, 205 Tenn. 591, 594, 329 S.W.2d 821.

At the time of the formation of our Constitution, an incident of the right of trial by jury at common law was that the jury, under proper instructions from the judge as to the law, had the right to decide all the issues of fact, to give a general verdict, compounded of law and fact, in favor of one side or the other. The jury also had the right, at their option, to return a special verdict, hading the ultimate facts in issue and leaving their legal consequences to the judge, who entered judgment on the facts found, if they were legally sufficient. The jury, however, could not be required to return a special verdict, or to give answers to interrogatories submitted to them, but were privileged to decline to find other than a general verdict. Thayer’s Preliminary Treatise on Evidence (1898), 137-175; Morgan, A Brief History of Special Verdicts and Special Interrogatories (1923), 32 Yale -592; Wicker, Special Interrogatories to Juries in Civil Cases (1926), 35 Yale L.J. 296-307.

“As matter of history, we know that the jury, on the whole, successfully stood out against these attempts [by judges to compel special verdicts]; and that in most cases their right was acknowledged. But now it is remarkable how judges and legislatures in this country [United States] are unconsciously travelling back towards the old result of controlling the jury, by requiring special verdicts and answers to specific questions. * * * Doubtless the judges at common law have always exercised a limited power of questioning the jury about their verdicts. But the general, common-law right of the jury to refuse to answer such questions and to give a short, general verdict has been acknowledged” (italics ours). Thayer, supra, pp. 218-219.

Professor Morgan says:

“It, therefore, seems safe to assert that at common law the jury almost from the beginning had the right to return a general verdict in all civil cases and in most criminal cases, and that by the close of the eighteenth century it had acquired this right in all criminal cases. ’ ’ Morgan, supra, p. 591.

Referring to the practice as to answering special interrogatories, Professor Morgan further says:

“The later English cases seem to accept without argument the view that the judge may examine the jury to ascertain the basis of its general verdict but may not without the consent of the parties and the jury charge the jury to return answers to special questions with the general verdict.

“In the United States the submission of special interrogatories, answers to which are' to accompany the general verdict, is generally recognized as proper at common law. The genesis of the practice is fonnd in the cnstom of the judges, adopted from England, to catechise a jury as to its reasons for an unanticipated verdict. The matter is now usually governed by statutes” (italics ours). Morgan, supra, p. 592.

In this connection, Dean Wicker says:

“Under the present English practice, it is the privilege of the jury to decline to find any other than a general verdict, even though the judge requests them to give a special verdict; and in the absence of consent of the parties and of the jury it is not proper for the trial judge to direct the. jury to return answers to special questions with their general verdict. After a generalverdict has been returned, the trial judge is not entitled to ask any further questions of the jury for the purpose of ascertaining the grounds for the verdict” (citing cases). Wicker, supra, 35 Yale L. J. 297.

Another incident of common law trial by jury is the separation of function by which the jury tries disputed issues of fact; and the judge, matters of law and all other questions (Whirley v. Whiteman, 38 Tenn. 610, 616-617; State ex rel., Myers v. Brown, 209 Tenn. 141, 351 S.W.2d 385, 388). Devices for separating law from fact were demurrer to the evidence (Hopkins v. Nashville C. & St. L. Railroad, 96 Tenn. 409,453-455, 34 S.W. 1029, 32 L.R.A. 354) and, later, motion for directed verdict (Greenlaw v. Louisville & N. R. R. Co., 114 Tenn. 187, 191, 86 S.W. 1072; Tyrus v. Kansas City, Ft. S. & M. Railroad, 114 Tenn. 579, 593, 86 S.W. 1074); but “there can be no constitutional exercise of the power to direct a verdict” on facts in dispute (italics ours) (114 Tenn. 594, 86 S.W. 1074).

Otherwise stated:

“It is the indisputable right of every litigant, upon seasonable and appropriate request, to have every material issue of fact on which he has introduced material testimony submitted to the consideration of the jury, with proper legal directions in respect of the verdict to be returned, upon the hypothesis that such testimony shall be found to be true” (italics ours). Memphis Street Ry. Co. v. Newman, 108 Tenn. 668 669, 69 S.W. 269.

As stated, the right to trial by jury, guaranteed by our Constitution, is the right as it was at common law— with the right of the jury, at their option, to return a special verdict or a general verdict, but with the privilege to decline to return any but a general verdict, which general verdict is “held to embrace every issue” unless expected to (T.C.A. sec. 20-1818).

We have no case holding that the jury may be required to render a special verdict, though a jury may be instructed to return a special verdict, in the event they cannot agree on a general verdict. Keith v. Clarke, 72 Tenn. 718. In Louisville & N. R. R. Co. v. Frakes, 11 Tenn.App. 593, 641, Presiding Judge Faw said:

“‘the privilege of the jury to decline finding any other than a general verdict’ * * * is, in our opinion, too firmly imbedded in the practice in this State to be disregarded by the trial courts” (11 Tenn.App. 641).

We think that this is a sonnd and accurate statement ; that hy the common law of this State, a jury, under proper instructions from the judge, has a right to decide all the issues of fact, to render a general verdict on the whole case for one side or the other, and to decline to render a special verdict.

It should be noted there is a difference between a special verdict and special findings in response to interrogatories or issues submitted to the jury. A special verdict is in lieu of a general verdict, and must find all the ultimate facts in issue, in order to form the basis of the judgment to be rendered. But special issues or interrogatories are put to the jury to elicit their answers to accompany their general verdict for the purpose of ascertaining the basis of that verdict and testing its consistency with such answers. 53 Am. Jur., Trial, sections 1063, 1064, 1065; Morgan, supra, 32 Yale L.J. 575, 588, 591; Wicker, supra 3 Yale L.J. 301; Anderson, Special Issues of Pact in Tennessee: A Look Behind the General Verdict, 22 Tenn.L.Rev. 1039, 1047; Tennessee Procedure in Law Cases, Higgins and Crownover, secs. 1515a-1515j.

“There is * * # a manifest difference between a special verdict and the finding of the facts in answer to interrogatories propounded to the jury. A special verdict is in lieu of a general verdict, and its design is to exhibit all the ultimate facts, and leave the legal conclusions entirely to the court * * * Findings of fact in answer to interrogatories do not dispense with the general verdict * * * A special verdict covers all the issues in the case, while an answer to a special interrogation may respond to but a single inquiry, pertaining merely to one issue, essential to the general verdict.” Morbey v. Chicago N. W. Ry., 116 Iowa 84, 89, 89 N.W. 105, 107 (citing authorities) (italics ours).

So, it is in the light of this background of common law that we must read the statute, above referred to, on which the learned Trial Judge seems to have based his action. That statute originated as section 10346 of the Code of 1932, and is in these words:

“10364. Special issues. — The trial judge, in his discretion, especially where the questions for solution are several or involved, may direct and supervise the formulation of special issue or issues of fact for submission to and answer by the jury. The response or responses of the jury shall have the force of other verdicts at law. ’ ’

This statute was re-enacted without change as T.C.A. sec. 20-1316, though given by the compilers the heading, ‘ ‘ Special Verdicts. ’ ’ These words, however, do not change or affect the construction to be given the statute.

It is a familiar rule that a statute is to be construed with reference to the common law, and does not change the common law further than it expressly declares or necessarily implies. Snyder v. McEwen, 148 Tenn. 423, 429, 256 S.W. 434; Linder v. Met. Life Ins. Co., 148 Tenn. 236, 243, 244, 255 S.W. 43; Olsen v. Sharpe, 191 Tenn. 503, 507, 235 S.W.2d 11.

Also, this statute, like our harmless error statute, is not to be construed so as to deny the right to a fair and impartial trial by jury as guaranteed by the Constitution. Manning v. State, supra, 155 Tenn. 276, 292 S.W. 451.

It does not purport to do that. It does not purport to abolish the common law mode of jury trial by which the jury, under proper instructions by the judge as to the law, has the right to determine all the issues of fact and render a general verdict on the whole case; nor does it attempt to change the common law rule that the jury has the right to render a special verdict or “to decline finding any other than a general verdict.”

It merely provides that the trial judge may direct and supervise the submission of special issue or issues of fact to the jury and that their response or reponses shall have the force of other verdicts at law; that is, that such special issues or interrogatories, with the jury’s answers thereto, are to be taken with the general verdict, and a judgment rendered thereon by the judge.

This statute is more or less similar to statutes which have been enacted in the majority of the states of the United States, providing for the submission of special interrogatories to the jury, and their answers thereto to be returned with their general verdict, and that in case of conflict between such answers and the general verdict, the answers control. Such statutes have been held not to infringe the constitutional right of trial by jury. Walker v. New Mexico & S. P. R. Co. (1897), 165 U.S. 593, 595-598, 17 S.Ct. 421, 4 L.Ed. 837, 842. For a discussion of such statutes, see Wicker, supra, 35 Yale L.J. 296-301; see also, Amended Federal Rules of Civil Procedure (Oct.1961), Rule 49, 28 U.S.C.A.

The view above expressed as to the construction of this statute (T.C.A. sec. 20-1316) is supported by the authors of Tennessee Procedure in Law Cases, Higgins & Crownover, supra, secs. 1515a-1515j; and by the Court

of Appeals in Lenoir Car Works v. Littleton, 41 Tenn. App. 323, 331, 293 S.W.2d 585, where it is said:

“ ‘We are of the opinion that the Code section just quoted does not change the rule [of the common law right of the jury to return a general verdict with its responses to the special interrogatories], and that notwithstanding the responding of the jury to special issues, they should he advised hy the court of their right to return along with the special answers their conclusions generally, that is, that they find for the plaintiff or for the defendant, and the court may still accept and act upon the general verdict of the jury, provided there be nothing inconsistent therewith in the special findings.’ Sec. 1515e, p. 580” (41 Tenn. App. 331, 293 S.W.2d 585) (italics ours).

Under such statutes as those above referred to in other states, the great weight of authority is that it is error for the judge to inform the jury of the effect their answers may have upon the case because such information would almost necessarily defeat the object to be secured by the answers to such interrogatories. Wicker, supra, 35 Yale L.J. 302-303. In Coats v. Town of Stanton, 90 Wis. 130, 136, 62 N.W. 619, 621, the court said:

“The jury had no right to be informed how any particular answer to a special question would affect the case, or what judgment would follow in consequence of it, for to impart such information would almost necessarily defeat the object intended to be secured by a special verdict, or answers to particular questions in connection with a general verdict. The object of the law is to secure fair and impartial answers to such questions, free from bias or prejudice in favor of either party or in favor of or against a particular result, and to guard against the danger of the result being affected or controlled by favor or sympathy, or by immaterial considerations.”

So, we agree with the Court of Appeals that the learned Trial Judge erred in this case. The plaintiff had a constitutional right to have every issue of fact made by the pleadings and the evidence submitted to the jury, with proper instructions by the judge, “upon the hypothesis that such testimony shall be found to be true.” (Memphis Street Ry. Co. v. Newman, supra, 108 Tenn. 666, 669, 69 S.W. 269). Tyrus v. Railroad, supra, 114 Tenn. 594, 86 S. W. 1074; Morgan v. Tennessee Cent. Ry. Co., 31 Tenn.App. 409, 422, 216 S.W.2d 32, 37.

But we cannot agree with the Court of Appeals that the error of the Trial Judge was harmless. It immediately touched the constitutional right of plaintiff, and cannot be saved by the harmless error statute. Dykes v. State, 201 Tenn. 65, 68-69, 296 S.W.2d 861, and cases there cited; Tenn. Gas. Trans. Co. v. Vineyard, 191 Tenn. 331, 333, 232 S.W.2d 403, 20 A.L.R.2d 279; MeClard v. Reid, 190 Tenn. 337, 342-345, 229 S.W.2d 505.

It is urged for defendant, respondent here, that the Trial Judge’s error did not harm plaintiff, because the jury’s answer to issue (1) was determinative of the whole case — that the finding that defendant did not supply the can in controversy to plaintiff disposed of the case and necessarily rendered all the other issues immaterial.

Here, the fallacy is that the answer to issue (1) is not determinative of the case; it may be determinative if answered one way, but not if answered the other way. To take the jury’s answer for defendant as determinative of the case is to assume such answer was valid, when, in fact, it was not valid, but was the result of the erroneous submission to the jury.

Another fallacy is that this reasoning overlooks the fact that plaintiff had a constitutional right to have all the issues of fact submitted to the same jury at the same time; and that this answer is the direct result of the violation of plaintiff’s constitutional right of trial by jury.

The record shows that this was the last case heard by this jury. The jury had completed their regular term of service on Friday, November 20th, and, expecting to be released on Friday, they had made arrangements to go back to their jobs or their businesses on Monday following, and so expressed themselves in court, but were, nevertheless, held over to further consideration of the case Monday.

In these circumstances, the case was submitted to the jury on issue (1) and they were told that a finding for defendant would end the case, but a finding for plaintiff would require them to be further held to consider additional issues to be submitted. Human nature being what it is, such a situation would naturally give defendant an unfair advantage. It tended to subject the jury to the temptation of a conflict of their interest with their duty, and to destroy the fairness and impartiality to which both parties were entitled.

Of course, nothing above said in this opinion is intended in anywise to reflect upon the learned Trial Judge, who is outstanding and well known for Iris painstaking consideration in all cases and for Ms exalted conception of judicial duty.

For these reasons, the judgments of the Court of Appeals and the Circuit Court are reversed, the answer of the jury on issue (1), is set aside, and the case is remanded for a new trial. Costs of the appeal in error are adjudged against defendant-respondent.

Prewitt, Chibe Justice, and White and Dyes, Justices, concur. Buenett, Justice, dissents.

1 (a) Art. 1, see. 8: “No man shall be * * * deprived of his life, liberty or property, but by the judgment of his peers or the law of the land.”

(b) Art. 1, sec. 9: “That in all criminal prosecutions, the accused hath the right to * * * a speedy public trial, by an impartial jury in the County in which the crime shall have been committed.”

(c) Art. 1, sec. 19: “* * * in all indictments for libel, the jury shall have the right to determine the law and the facts, under the direction of the court, as in other criminal cases.”

(d) Art. 6, sec. 9: “Judges shall not charge juries with respect to matters of fact, but may state the testimony and declare the law.”

(e) Art. 6, sec. 14: “No fine shall be laid on any citizen * * * that shall exceed fifty dollars, unless it shall be assessed by a jury of his peers who shall access the fine at the time they find the facts * *