Howard D. Jury, Inc. v. R & G Sloane Mfg. Co., Inc., 79-2113
| Citation | 666 F.2d 1348 |
| Decision Date | 18 December 1981 |
| Docket Number | No. 79-2113,79-2113 |
| Parties | HOWARD D. JURY, INC., Plaintiff-Appellant, v. R & G SLOANE MANUFACTURING COMPANY, INC., Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Richard Lee Polk, Denver, Colo. (Dean R. Vanatta, Denver, Colo., on the brief), of Vanatta & Spelts, P. C., Denver, Colo., for plaintiff-appellant.
R. Eric Peterson (Patricia M. Pisarowicz, Denver, Colo., with him on the brief), of White & Steele, P. C., Denver, Colo., for defendant-appellee.
Before SETH, Chief Judge, McWILLIAMS, Circuit Judge, and BROWN, Senior District Judge *.
This is an appeal by Howard D. Jury, Inc., plaintiff-appellant from an adverse judgment against it as the result of a civil jury trial.
Plaintiff entered into a subcontract in which it agreed to construct an automatic irrigation system at the Cienegita Golf Course on the Mescalero Apache Indian Reservation in New Mexico. In installing the irrigation system, plaintiff purchased and used certain products designed and/or sold by defendant-appellee under the trade name "Color Guard System." Thereafter, numerous underground leaks and ruptures occurred in the irrigation system, and plaintiff instituted suit against defendant. The case was tried on two theories: 1) negligence in the design, testing, inspection, manufacture, and sale of the "Color Guard System" (and contributory negligence of plaintiff in improperly installing the system contrary to defendant's instructions); and 2) breach of implied warranty of merchantability. The district court submitted the matter to the jury under the court's instructions, providing them with general verdict forms on the warranty issue, and a special verdict form on the negligence issue, which contained seven questions. There are no objections to the court's instructions.
During the first day of its deliberations, and again on the second and final day, the jury transmitted written questions to the trial court. After the second set of questions had been answered in open court with counsel present, the jury returned the special verdict on negligence. In answering the questions contained in the special verdict, the jury found that both plaintiff and defendant were negligent, and that the negligence of both had proximately caused plaintiff's claimed damages. The percentage of negligence, asked for in Question 5, was attributed 32.5% to defendant, and 67.5% to plaintiff. The jury found that the total amount of damages sustained by the plaintiff and proximately caused by the defendant's negligence was $56,420.00, and that total was broken down into three categories in Question 7. After the special verdict had been read, it was discovered that the jury had not returned a verdict on the issue of warranty, and the trial court returned the jury for further deliberations, stating that he assumed it was only going to "take a minute" and that the court and counsel would wait for them. The jury returned a verdict for defendant on the warranty issue shortly thereafter.
The district court entered judgment for the defendant on both theories, since under Colorado law, negligence on the part of a plaintiff which is greater than that of a defendant bars any recovery. After the entry of judgment, plaintiff moved for a judgment notwithstanding the verdict or in the alternative, for a new trial. The district court denied the motions, and plaintiff now appeals from those denials, raising two issues. They are: 1) Whether the trial court erred in refusing to order a new trial on the grounds that the jury was confused and did not understand the court's instructions as a whole; and 2) whether it was error for the trial court to refuse to reread the comparative negligence instruction or the instructions in their entirety to the jury.
Plaintiff attempts to illustrate confusion of the jury in several ways, beginning with the questions they asked concerning the negligence special verdict form. Questions 5, 6, and 7 on that form, which were the center of the jury's difficulties, and thus are the center of the controversy between the parties on appeal, read:
(1) Repairs and replacements
(2) Back charges
(3) Lost profits.
On the first day of its deliberations, the jury asked three questions regarding the verdict forms, the second of which was: "Do the percentages referred to in Question No. 5 relate to the total figure in No. 6 or each item in No. 7?" The court then reread the last three questions on the special verdict form and gave a brief explanation, to which there was no objection. Because of the lack of an objection, we need not consider the first set of questions any further. On the second day of its deliberations, the jury again sent written questions to the trial court, and it is these questions which the plaintiff contends clearly demonstrate confusion:
Does question # 6 want the total amount to be awarded to the plaintiff by the defendant or the total amount of damage done from which the amount to be awarded the plaintiff by the defendant would later be figured from the percentages given in question # 5?
Does question # 7 ask for the total amount of damage done or the total amount of money Sloane would owe for the damage?
In answering the questions, we realize that we decide the amount for question # 6. However, when we figure the percentages on question # 5, is it supposed to equal 100% of answer # 6 (if it differs from the $175,000 asked for) or the percentage of $175,000 regardless of any change we decided on?
The trial court again went over the questions in the negligence special verdict form, carefully explaining each one to the jury, and then asked the jurors if they understood. One juror asked if they might discuss the matter further, and the court allowed further questions from the jurors and supplied further answers, all without objection from counsel, until the jurors indicated they had no further questions. At that point, defendant's attorney believed the jury was still confused, and the attorneys for both sides agreed to try to clarify the special verdict form. The change referred to in Footnote 1 was agreed to and made. When asked whether the change had answered their question, the jurors indicated that it had. The foreman, who had earlier stated in response to a question from the court that he did not know whether it was necessary or would be helpful for the court to read all the instructions again, at this point unequivocally answered "No" when the trial court repeated the question. Two jurors then stated that they thought they had already reached an agreement or understanding, and the foreman said "We want to make sure we are doing it right before we bring it in." The jury again retired to the jury room without an objection from either counsel, though plaintiff's attorney had requested that all of the instructions be repeated, which point will later be discussed. No further communications from the jury were received before the special verdict was returned.
In addition to the failure of plaintiff's counsel to object to the court's explanations and answers, and to...
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