Harbison v. Briggs Bros. Paint Mfg. Co.

• Decision Date: 08 February 1962
• Citation: 209 Tenn. 534,354 S.W.2d 464,13 McCanless 534
• Parties: , 209 Tenn. 534 James M. HARBISON v. BRIGGS BROS. PAINT MFG. CO.
• Court: Tennessee Supreme Court

Page 464

354 S.W.2d 464

13 McCanless 534, 209 Tenn. 534

James M. HARBISON v. BRIGGS BROS. PAINT MFG. CO.

Supreme Court of Tennessee.

Feb. 8, 1962.

Karl L. Bishop, Joseph L. Lackey, Nashville, for petitioner.

Cate & Cate, George H. Cate, Jr., Nashville, for respondent.

FELTS, Justice.

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 him 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 Marshall. 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 conclusive of the case, and the legal effect would be to exonerate this 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. § 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 error 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 it 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. §§ 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 S.W.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, finding 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 L.J. 575-592; 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 to 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...