Bourne v. Atchison, T. & S. F. Ry. Co., 46627

• Decision Date: 06 May 1972
• Docket Number: No. 46627,46627
• Citation: 497 P.2d 110,209 Kan. 511
• Parties: Ginger Lee BOURNE and Robert Lee Bourne, By Their Mother and Next Friend, Juanita L. Bourne, and Juanita L. Bourne, Individually, Appellees, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a Corporation, Appellant.
• Court: Kansas Supreme Court

Page 110

497 P.2d 110

209 Kan. 511

Ginger Lee BOURNE and Robert Lee Bourne, By Their Mother and Next Friend, Juanita L. Bourne, and Juanita L Bourne, Individually, Appellees, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a Corporation, Appellant.

No. 46627.

Supreme Court of Kansas.

May 6, 1972.

Rehearing Denied June 14, 1972.

Syllabus by the Court

1. The right of trial by jury is a substantial and valuable right. The law favors trial by jury, and the right should be carefully guarded against infringements.

2. The state has an interest in the subject of trial by jury as a matter of public policy. The state has declared its policy on the subject not only by the decisions of its courts but also through acts of the legislature.

3. The legislature may make any reasonable regulations as to the practice and procedure in civil cases involving jury trials as long as the right to a jury trial is not materially impaired.

4. The legislature has the power to regulate the number of jurors required in civil cases in district court.

5. K.S.A.1971 Supp. 60-248(a) has made it mandatory that a 12-member jury be used in all civil cases in district court in the absence of a stipulation by the parties for a lesser number.

Roth A. Gatewood, Topeka, argued the cause, and J. B. Reeves, J. W. Dillingham and Thomas R. Conklin, Topeka, were with him on the brief for appellant.

Marian M. Burns, Lyndon, argued the cause, and Clyde M. Burns, Lyndon, was with her on the brief for appellees.

PRAGER, Justice:

This is an action to recover damages for the wrongful death of Derald L. Bourne. The suit was brought by Juanita L. Bourne, his widow, individually and as the mother and next friend of their two children, Robert Lee and Ginger Lee Bourne. Derald L. Bourne was killed at a rural railroad crossing in Osage County, Kansas, on March 1, 1969, when the truck in which he was riding and a passenger train of the Atchison, Topeka and Santa Fe Railway Co. collided at the crossing.

The record discloses that the action was filed on August 20, 1969. The case was set for trial on September 20, 1971, by a Notice of Assignment for Jury Trial issued by the clerk of the District Court of Osage County on August 10, 1971. Accompanying the notice was a special notice issued by the clerk directing counsels' attention to Rule 4-7 of the Fourth Judicial District. This rule provided as follows:

'4-7 JURY NUMBER

'In all misdemeanor and civil cases the jury shall consist of the number of six. The parties will be deemed to have stipulated thereto unless written motion requesting an order for a greater number of jurors shall have been filed and served for a hearing at least ten days before the date assigned for trial.' (Adopted July 21, 1971.)

On August 23, 1971, the defendant railway company filed its Motion for Twelve Jurors. The motion was argued and overruled on September 2, 1971. The trial of this suit commenced on September 20, 1971 before a jury consisting of six members. Following the selection of the jury the railway company moved for a mistrial predicated on the lack of 12 jurors which motion was overruled. The railway company moved for a mistrial on the same grounds at the close of all of the evidence on September 21, 1971. This motion was likewise overruled. The six-member jury returned a sizeable verdict against the defendant. Following the rendition of the verdict and the entry of judgment thereon on September 22, 1971, the railway company filed a motion for a new trial alleging among other trial errors that it had been denied its statutory right to a trial by 12 jurors as provided by the laws of the state of Kansas. The defendant's motion for a new trial was argued and overruled on October 13, 1971. A timely notice of appeal was filed to this court.

In order to focus the attention of the court on this one issue of the denial of the right to a jury of 12 members, all other trial errors were abandoned by the appellant in this appeal. The basic question presented on this appeal is whether the district court by Rule 4-7, as interpreted and applied by the district court, may direct that a civil case be tried before a jury of six members when the parties did not stipulate to a jury of six members and when one of the parties by motion specifically demanded a jury of 12 members.

The case has been ably briefed and argued by counsel for both sides. The case presents an issue of first impression before this court-a question of great importance to the people of this state and one involving significant considerations of public policy and the administration of justice in Kansas.

At the outset it should be emphasized that the parties have not raised any constitutional issues arising either under the Constitution of the United States or the Constitution of the State of Kansas. Both parties concede the power of the state legislature to make reasonable regulations as to the practice and procedure in civil cases involving jury trials, including the power to declare the number of members to constitute a jury in the trial of civil cases. This is true so long as the right to a jury trial is not seriously impaired. In this regard both parties cite and rely on the decision of the Supreme Court of the United States in Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446.

Before considering the various contentions of the parties it would be helpful to look at some of the provisions of the Kansas law pertaining to the right of trial by jury. The right of trial by jury is provided for in the Constitution of the State of Kansas in Section 5 of the Bill of Rights which declares as follows:

' § 5. Trial by jury.

'The right of trial by jury shall be inviolate.'

K.S.A. 60-238 provides a statutory right to trial by jury as follows:

'60-238. Jury trial of right.

'(a) Right preserved. The right of trial by jury as declared by section 5 of the bill of rights in the Kansas constitution, and as given by a statute of the state shall be preserved to the parties inviolate.'

Other sections of K.S.A. 60-238 permit a party to demand a trial by jury and provide that the failure to serve the demand for a jury constitutes a waiver of the right to trial by jury.

K.S.A.1971 Supp. 60-248 provides as follows:

'60-248. Jury trial procedure.

'(a) Stipulation as to number. The parties may stipulate that the jury shall consist of any number less than twelve (12) 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.'

It should be noted that as of this time there is no provision in either the Kansas Constitution or the Kansas Statutes which declares specifically the number of persons to constitute a jury in civil cases tried in the district court.

Since the beginning of statehood the legislature has from time to time enacted statutes declaring with particularity the number of persons necessary to constitute a jury in different types of cases in different courts in this state. In G.S.1868, Chapter 54, Sections 9 and 21, reference is made to the drawing of 12 persons to serve as petit jurors. Prior to the enactment of K.S.A. 60-248 by the 1963 legislature, G.S.1949, 60-2907, was in effect from 1909 to 1964 and provided that in civil cases after the jurors are passed for cause and preemptory challenges have been exercised the remaining 12 shall constitute the jury to try the cause.

The justice court procedure in Kansas provided for trial by a jury of six in all civil actions in justice court unless the parties agreed on a lesser number. This was governed by G.S.1949, 61-816, which was in effect from 1949 until 1969 when the Code of Civil Procedure before Courts of Limited Jurisdiction was enacted. The present statute governing civil procedure in courts of limited jurisdiction provides for a six-member jury and for agreements for a lesser number (K.S.A.1971 Supp. 61-1716(c).) Civil juries in county courts consisted of six members unless request was made in writing by either party for 12 jurors according to K.S.A. 20-812 until that statute was repealed and replaced by K.S.A.1971 Supp. 61-1716.

The legislature has specifically provided for the trial of felony cases in district court to a 12-member jury both in our old code of criminal procedure (K.S.A. 62-1412) and in our new code of criminal procedure (K.S.A.1971 Supp. 22-3403.) Under K.S.A. 22-3403(2) the parties may agree in writing at any time before the verdict, with the approval of the court, that the jury shall consist of any number less than 12. Under the new criminal code the trial of misdemeanor cases in the district court shall be in the same manner provided for the trial of felony cases, but a jury in a misdemeanor case tried in a state court other than the district court must consist of six members unless the defendant requests a jury of 12 or another number is agreed upon by the parties. (K.S.A.1971 Supp. 22-3403.) All of these statutory provisions are cited to show that historically the legislature has customarily declared the number of persons to constitute a petit jury in our state courts.

With these constitutional and statutory provisions in mind let us turn to the contentions of the parties. Counsel for the appellant contends in substance that the legislature has the power to establish the number of jurors by statute and that under the provisions of K.S.A.1971 Supp. 60-248(a), it is the legislative intent that litigants in civil cases in district court be entitled to a jury of at least 12 members unless there is an agreement or stipulation to the contrary. It is further contended that statutory provisions for the number of jurors are binding upon the courts. The rationale is that the right of trial by jury is a fundamental right having its origin in the mists of the past in the common law and which has traditionally been protected and regulated by constitutional and statutory provisions. Hence it is argued that the district...