459 F.2d 779 (5th Cir. 1972), 71-2956, Cooley v. Strickland Transp. Co.

Docket Nº:71-2956.
Citation:459 F.2d 779
Party Name:Mrs. Lealon (Lois) COOLEY, Individually and as tutrix, on behalf of her minor children, etc., Plaintiff-Appellant, v. STRICKLAND TRANSPORTATION COMPANY et al., Defendants-Appellees.
Case Date:April 21, 1972
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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459 F.2d 779 (5th Cir. 1972)

Mrs. Lealon (Lois) COOLEY, Individually and as tutrix, on behalf of her minor children, etc., Plaintiff-Appellant,



No. 71-2956.

United States Court of Appeals, Fifth Circuit.

April 21, 1972

         Rehearing and Rehearing En Banc June 20, 1972.

         J. Clem Drewett, Lake Charles, La., Paul A. Tucker, Powell, Tucker, Kain & Reedy, Houston, Tex., for plaintiff-appellant; Drewett & Jacques, Lake Charles, La., of counsel.

         Allen L. Smith, Jr., Frank M. Brame, Lake Charles, La., Plauche, Smith & Hebert, for defendants-appellees.

         Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.

         WISDOM, Circuit Judge:

         The appellant challenges the validity of a local rule of a federal district court providing that a civil jury "shall consist

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of six members". The challenge relies on (1) the Seventh Amendment, (2) F.R.Civ.P. 48, and (3) 28 U.S.C. § 2072. We uphold the validity of the local rule. See Colgrove v. Battin, 9 Cir. 1972, 456 F.2d 1379 rejecting similar attacks on a local rule adopted by the District Court for the District of Montana providing that, "A jury for the trial of civil cases shall consist of six persons . . .". See also Devitt, The Six Man Jury in the Federal Court, 53 F.R.D. 273 (1971).

         The plaintiff-appellant, Mrs. Lois Cooley brought a diversity suit on behalf of herself and her minor children for damages resulting from the death of her husband. The case was tried to a six-member jury over the objection of all parties. 1 After a nine-day trial, the jury found for the defendants. Mrs. Cooley appeals.


          The appellant argues, first, that the local rule making the six-member jury mandatory in "all civil jury cases" deprives her of her Seventh Amendment "right to trial by jury". 2 We cannot agree. We hold that the twelve-member panel is not a necessary requirement of "the right of trial by jury" in civil cases.

         In Williams v. Florida, 1970, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446, the petitioner challenged the constitutionality of a Florida statute providing that "six men shall constitute a jury to try all . . . criminal cases [except capital cases]". The Supreme Court rejected the challenge and held that "petitioner's Sixth Amendment rights, as applied to the States through the Fourteenth Amendment, were not violated by Florida's decision to provide a six-man

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rather than a 12-man jury". 399 U.S. at 103, 90 S.Ct. at 1907. The Court's consideration of the jury trial right in Williams was in the context of a discussion of the Sixth Amendment. 3 The Court therefore added a caveat to its holding:

[W]e do not decide whether, for example, additional references to the "common law" that occur in the Seventh Amendment might support a different interpretation.

399 U.S. at 92, fn. 30, 90 S.Ct. at 1901.

         Despite this caveat, we believe that the applicability of Williams to criminal cases answers the constitutional arguments leveled against the six-member civil jury. 4 As Justice White pointed out in Williams, in a criminal case "[t]he purpose of the jury trial . . . is to prevent oppression by the Government". 399 U.S. at 100, 90 S.Ct. at 1905. In a criminal case, because the liberty of the accused is at stake, the jury has always performed a zealously guarded role; a jury insures that, despite the efforts of "'the corrupt or overzealous prosecutor and . . . complaint, biased, or eccentric judge"', 399 U.S. at 100, 90 S.Ct. at 1905, an accused will not be deprived of his liberty without a judgment by his peers. No such role is performed by a jury in a civil case where property or damages are at stake. Whatever one considers the role of a civil jury and whatever importance attaches to that role, (see authorities cited in footnote 9), no one has ever contended that the function of the civil jury is more important than that of the criminal jury. Changes in the traditional jury, therefore, such as the change approved in Williams, which do not offend the concept of "trial by jury" within the context of a criminal case (Sixth Amendment) would not offend that concept within the context of a civil case (Seventh Amendment). It would be anomalous to the point of irrationality to construe the Constitution as sanctioning a six-member criminal jury but not sanctioning a six-member civil jury.

          The Seventh Amendment is textually different from the Sixth Amendment. The Seventh Amendment twice refers to "common law". See footnote 2. We do not find these references determinative of the question of the size of the civil jury. The reference to "common law" in the first clause of the Seventh Amendment, the only clause with which we are concerned in the present case, 5 represents an intention by the Framers to distinguish between cases "in law," where a jury was traditionally used, and cases in equity and admiralty, where no jury, was used. Parsons v. Bedford, 1830, 28 U.S. (3 Pet.) 433, 445-446, 7 L.Ed. 732, 736-737.

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The available historical evidence indicates no intention of the Framers of the Bill of Rights to require "the exact procedural incidents or details of jury trial according to the common law in 1791." Galloway v. United States, 1943, 319 U.S. 372, 390, 63 S.Ct. 1077, 1087, 87 L.Ed. 1458; Henderson, The Background of the Seventh Amendment, 80 Harv.L.Rev. 289 (1966). See also Ross v. Bernhard, 1970, 396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729; Capital Traction Co. v. Hof, 1899, 174 U.S. 1, 13, 19 S.Ct. 580, 43 L.Ed. 873, 877; Shields v. Thomas, 1856, 59 U.S. (18 How.) 253, 15 L.Ed. 368; Aqwilines v. N. L. R. B., 5 Cir. 1936, 87 F.2d 146; Geneux v. Texas & Pac. Ry. Co., D.C.La. 1951, 98 F.Supp. 405.

         Even assuming, as the Court does in Williams, that the common law jury in 1791 consisted of twelve members, that number is by no means sacred 6 and is, as the Court noted, "a historical accident, unnecessary to effect the purposes of the jury system and wholly without significance 'except to mystics."' 399 U.S. at 102, 90 S.Ct. at 1907. 7 Just as the Supreme Court in Williams refused to bind the Sixth Amendment to the twelve-member jury, despite a long line of cases holding that "the jury referred to in the Amendment was a jury 'constituted, as it was at common law, of twelve persons, neither more nor less"', 399 U.S. at 90, 90 S.Ct. at 1900, 8 we refuse to shackle the Seventh Amendment to "a historical accident, unrelated to the great purposes which gave rise to the jury in the first place". 399 U.S. at 89-90, 90 S.Ct. at 1900.

         The "common law is not immutable but flexible, and by its own principles adapts itself to varying conditions." Funk v. United States, 1933, 290 U.S. 371, 54 S.Ct. 212, 78 L.Ed. 369, 376. We may, as the Court did in Williams, consider not only "the intent of the Framers" but also "the function that the particular feature performs and its relation to the purposes of the jury trial." 399 U.S. at 99-100, 90 S.Ct. at 1905. Much has been written, favorable and unfavorable, about the civil jury and reducing the size of the jury. 9 Our task, however, is not to

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decide the merits of a twelve-man jury but to decide whether the federal district courts may constitutionally reduce the size of the civil jury. The Supreme Court has asserted that "the reliability of the jury as a factfinder hardly seems likely to be a function of its size", 399 U.S. at 100-101, 90 S.Ct. at 1906, and that the six-member jury in the criminal context performs its "function" as well as the twelve-member jury. See 399 U.S. at 99-102, 90 S.Ct. 1893. We feel compelled to make the same evaluation in a civil context. "The aim of the [Seventh] amendment . . . is to preserve the substance of the commonlaw right of trial by jury, as distinguished from mere matters of form or procedure . . ." Baltimore & Carolina Line v. Redman, 1935, 295 U.S. 654, 657, 55 S.Ct. 890, 891, 79 L.Ed. 1636, 1638. 10


         Rule 48 of the Federal Rules of Civil Procedure provides:

The parties may stipulate that the jury shall consist of any number less than twelve or that a verdict or a finding of a stated majority of the jurors shall be taken as the verdict or finding of the jury. 11

          The appellant asserts that the local district court rule requiring a sixmember

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civil jury in certain cases is invalid because it is inconsistent with Rule 48. 12 This argument has two parts. First, the appellant contends that the local rule is invalid as inconsistent with Rule 48, because it deprives her of a twelve-member jury which Rule 48, as she reads it, guarantees. This argument is, however, misplaced. Rule 48 does not, on its face, guarantee a twelve-member jury, and we cannot imply such a guarantee in the Rule. When the drafters of the Rules wished to guarantee a twelvemember jury, they knew how to use express language to that effect. See F.R. Crim.P. 23(b). 13 Furthermore, the presence of Rule 48 with Rule 38(a) 14 in the Federal Rules of Civil Procedure indicates that the drafters did not intend to enshrine the common law jury with all its details, including twelve members, in Rule 48. For, Rule 48, despite Rule 38 (a) and the preservation of "[t]he right of trial by jury . . . inviolate", abrogates the common law notion that the parties may not stipulate to a jury of less than twelve members. 15

          Second, the appellant argues that the local rule is invalid, as inconsistent with Rule 48, because it deprives her of the right to stipulate to a jury of "any number less than twelve" which Rule 48, as she reads it, guarantees. 16 Rule 48, however, deals only with a stipulation by "[t]he parties". It does not purport to prevent court rules which provide...

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