Clark v. Foster

• Decision Date: 16 April 1964
• Docket Number: No. 9276,9276
• Citation: 391 P.2d 853,87 Idaho 134
• Parties: Willis D. CLARK, individually, and Willis D. Clark, as guardian of the estates and persons of Hurby Lynn Clark, Kathy Sue Clark, Jerry Wayne Clark and Diana Gayle Clark, minors, Plaintiffs-Appellants, and Cross-Respondents, v. Lyle FOSTER and Ona Foster, Defendants-Respondents, and Cross-Appellants.
• Court: Idaho Supreme Court

Page 853

391 P.2d 853

87 Idaho 134

Willis D. CLARK, individually, and Willis D. Clark, as guardian of the estates and persons of Hurby Lynn Clark, Kathy Sue Clark, Jerry Wayne Clark and Diana Gayle Clark, minors, Plaintiffs-Appellants, and Cross-Respondents, v. Lyle FOSTER and Ona Foster, Defendants-Respondents, and Cross-Appellants.

No. 9276.

Supreme Court of Idaho.

April 16, 1964.

Rehearing Denied May 19, 1964.

Murphy, Schwartz & Cunningham, Twin Falls, for appellants.

Parsons, Smith & Snow, Burley, Parry, Robertson & Daly, Twin Falls, for respondents.

McQUADE, Justice.

Plaintiffs-appellants and cross-respondents will hereinafter be referred to as appellants. Ona Foster and Lyle Foster, mother and son, are defendants-respondents and cross-appellants and will hereinafter be referred to as respondents. The late Hurby L. Clark will hereinafter be referred to as the father, and the late Juanita A. Clark will hereinafter be referred to as the mother.

On July 7, 1959, at approximately 6:00 p. m., the father was driving a 1952 Chevrolet sedan in a westerly direction on Minidoka County Highway 200 South. There were eight persons in this automobile; the father, the mother, their four children (appellants herein) and two other passengers. The automobile was proceeding westward toward the intersection of County Highway 200 South and County Highway 100 West. At the same time, respondent Lyle Foster was proceeding north on Minidoka County Highway 100 West. He was driving Ona Foster's Pontiac. The two vehicles collided at the aforementioned intersection. The father was killed instantly, the mother died shortly thereafter and the minor children suffered personal injuries as a result of the collision.

Willis D. Clark brought this action, individually and as guardian of the estates and persons of the minor appellants to recover damages allegedly sustained as a result of the negligence of the respondents. In the trial court, appellants alleged three separate and distinct causes of action; 1. for personal injuries received and medical expenses incurred by the minor appellants as a result of the accident; 2. for the wrongful death of the father, and 3. for the wrongful death of the mother. Under the third cause of action, Willis D. Clark also sought to recover for ambulance, medical and funeral expense allegedly incurred as a result of the death of the mother.

The jury found against appellants and in favor of respondents on all three causes of action. On April 3, 1961, the trial court entered judgment upon the verdict. On April 12th, appellants moved for a new trial on their first and third causes of action. Nine grounds were listed as a basis for appellants' motion; among them was the charge that 'One or more of the jurors assented to the verdicts entered by resort to determination of said verdicts by chance.' I.C. § 10-602(2). Affidavits of ten of the jurors were submitted with the motion for new trial for the purpose of showing that the verdict was arrived at by chance. No counter-affidavits were filed by respondents. In the amended order filed on August 21, 1962, the trial judge granted appellants' motion for a new trial on the first cause of action and denied appellants' motion for a new trial on the third cause of action. The trial judge did not state the grounds upon which the order was made.

On October 16th, appellants filed their notice of appeal from the denial of their motion for a new trial on the third cause of action and from the judgment entered on the jury verdict. Subsequently, respondents filed their cross-appeal from the amended order granting appellants a new trial on their first cause of action.

The trial court has wide discretion in ruling upon a motion for new trial and where a new trial has been granted, the record will be liberally construed in support of the order. Coast Transport, Inc. v. Stone, 79 Idaho 257, 313 P.2d 1073 (1957).

As noted previously, one of the grounds assigned by appellants as a basis for their motion for new trial was that one or more of the jurors had assented to the rendition of a verdict by chance in that they had agreed to bound by a quotient verdict. I.C. § 10-602(2). Appellants alleged that the technique employed was that each juror placed his opinion of the degree or percentage of negligence attributable to the respondent Lyle Foster on a piece of paper. The foreman added up the total of percentage figures thus obtained, divided by twelve, and the jury thus determined that the respondent Foster was only 47% responsible for the collision and ensuing damages. In conformance with their prior agreement that if the respondent Foster was over 50% negligent the verdict would be in favor of appellants, the jury then ruled for respondents on all three cause of action. We do not recognize comparative negligence in Idaho. Cook v. Lammy, 73 Idaho 445, 253 P.2d 244 (1953).

This court has previously held that a quotient verdict is one obtained by 'a resort to the determination of chance,' and is invalid under I.C. § 10-602(2). Butland v. City of Caldwell, 51 Idaho 483, 6 P.2d 493 (1931); Cochran v. Gritman, 34 Idaho 654, 203 P. 289 (1921); Newman v. Great Sho-shone Etc. Power Co., 28 Idaho 764, 156 P. 111 (1916); Giffen v. City of Lewiston, 6 Idaho 231, 55 P. 545 (1898); McDonald v. Great Northern Railway Co., 5 Idaho 8, 46 P. 766 (1896); Flood v. McClure, 3 Idaho 587, 32 P. 254 (1893).

Respondents contend that we are not dealing with a quotient verdict in the instant case. They argue first of all that in the cases noted hereinabove the jury used a quotient for the sole purpose of determining the amount of money to be awarded a party in a particular action. They point out that in the instant case the quotient was not used to determine damages but to determine the liability of the parties involved.

Respondents have correctly pointed out that the procedure used by the jury in the instant case can be factually distinguished from what is traditionally known as the quotient verdict. It appears, however, that the evils are fully as inherent in the instant situation as they are when a jury uses a quotient to determine the amount of damages. To illustrate, in Flood v. McClure, supra, 3 Idaho at page 594, 32 P. at page 256, the court, quoting from a Nevada case, stated:

'* * * 'The cases where verdicts have been set aside proceed upon the theory that, if upheld, where jurors bind themselves in advance, it might lead to great injustice, because it would enable one inveterate juror, by marking down a very large or small sum, to produce an average and procure a verdict for an amount which would be unreasonable, and at utter variance with the judgment of other jurors. This would be a chance verdict, and, whenever such misconduct is properly down, the verdict ought to be set aside. * * *''

The statute itself does not distinguish between the use of methods of chance for one purpose and their use for another. I.C. § 10-602(2) states:

'The former verdict or other decision may be vacated and a new trial granted * * * when any one or more of the jurors been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, * * *.' (Emphasis supplied) See also Beakley v. Optimist Printing Co., Ltd., 28 Idaho 67, 152 P. 212 (1915).

The fact that a quotient was used here for a purpose other than determining the amount of damages is irrelevant:

'* * * The clear intent of the law is that the verdict shall be the result of intellectual discussion, deliberation and conviction by and of the jury, * * * If the rights of litigants are to be determined by juries by such methods, they had as well determine their own rights by drawing lots or tossing up a piece of money, and not pretend to submit their cases to juries for their careful deliberation and for the result of their best judgment. * * *' Flood v. McClure, supra, 3 Idaho at pp. 594-595, 32 P. at p. 256.

Respondents next contend that the jury's decision in the instant case cannot be called a quotient verdict unless appellants can establish that the jurors agreed in advance to be bound by the results of the average complied by the foreman. This is a correct statement of the law. As we pointed out in Cochran v. Gritman, supra, 34 Idaho at page 672, 203 P. 289 at page 295;

'A verdict is not subject to be challenged on the ground that it was a chance verdict because the jurors during the course of their deliberation, in order to compose their differences of opinion as to the amount that should be allowed, undertake to average their judgment, unless it clearly appears that before doing so they each severally agree to be bound by the result of such chance methods after such result has been reached. * * * a verdict should only be set aside on the ground that it was arrived at by chance upon a clear showing that it is the result of chance instead of deliberation.'

The uncontrovered affidavits submitted in this cause, however, establish that the jury verdict was arrived at by resort to chance instead of deliberation. Juror Floyd D. Mason stated in his affidavit;

'* * * We agreed to average the percentage of the negligence and give the verdict in favor of the one who had the least negligence. We voted for Foster by putting a percentage on a piece of paper and gave the paper to the Foreman. He averaged it by adding the percentage up and dividing by 12. This was the only way we were able to come to an agreement. * * *' (Emphasis supplied)

Juror Dale C. Stoller stated in his affidavit;

'* * * That the issue of negligence was discussed by members of the jury at great length and in order to bring the matter to a head and to decide the issue of negligence, it was decided that each juror should place on a slip of paper his opinion as to whether Lyle Foster was negligent and in some degree responsible for the accident; that this was done and the twelve...