Munger v. State Indus. Acc. Commission

• Decision Date: 11 May 1966
• Parties: Otto B. MUNGER, Appellant, v. STATE INDUSTRIAL ACCIDENT COMMISSION of the State of Oregon, Respondent.
• Court: Oregon Supreme Court

Page 328

414 P.2d 328

243 Or. 419

Otto B. MUNGER, Appellant, v. STATE INDUSTRIAL ACCIDENT COMMISSION of the State of Oregon,

Respondent.

Supreme Court of Oregon, Department 1.

Argued and Submitted April 6, 1966.

Decided May 11, 1966.

Clifford B. Olsen, Portland, for appellant. On the brief were Franklin, Olsen, Bennett & Des Brisay, Portland.

O. E. McAdams, Jr., Asst. Atty. Gen., Salem, for respondent. With him on the brief were Robert Y. Thornton, Atty. Gen., Salem, and Wallace Carpenter and John R. McCulloch, Jr., Asst. Attys. Gen., Salem.

Before McALLISTER, C.J., and PERRY, DENECKE, HOLMAN and SCHWAB, JJ.

SCHWAB, Justice pro tem.

Plaintiff appealed to the circuit court from an order of the defendant State Industrial Accident Commission denying plaintiff's petition for increased compensation on account of aggravation of an injury. He appeals to this court from judgment entered on a jury verdict. The issue on appeal is: Must the minimum legal number of jurors required for a valid verdict, be it special or general, ¹ be the same jurors voting similarly on each separate issue demanding resolution?

After it was instructed, the jury retired with a jury form which contained three questions:

'QUESTION 1: Has plaintiff's condition proximately resulting from his accidental injury of June 7, 1961 become aggravated since December 9, 1963?

'ANSWER: _ _ (Yes or No)

(If your answer to the foregoing question is 'no' then you will proceed no further, but if your answer to the foregoing question is 'yes', then you will proceed to answer Question No. 2)

'QUESTION 2: Is plaintiff permanently and totally disabled as a direct and proximate result of his accidental injury of June 7, 1961?

'ANSWER: _ _ (Yes or No)

(If you answer the foregoing question 'yes', then you will proceed no further, but if you answer the foregoing question 'no', then you will proceed to answer Question No. 3)

'QUESTION 3: What is the extent of plaintiff's permanent partial disability for unscheduled disabilities proximately resulting from his accidental injury of June 7, 1961?

'ANSWER: _ _% Loss of use of one arm.

(Your answer cannot be less than 35% Nor more than 100%).

'Dated this _ _ day of September, 1965.'

The jury first answered the three questions put to it as follows: Question 1: Yes. Question 2: No. Question 3: 70%. The jury was polled and the court refused to receive the verdict when the poll showed that the nine jurors who had answered Question 1 'yes' were not the same nine who had voted for the answer inserted in response to Question 3.

The jury was returned to the jury room with a new verdict form. Thereafter the jury returned a second verdict in which they gave the same answers to Questions 1 and 2 but gave 50% As the answer to Question 3. The jury was again polled and it was determined that the same nine jurors that answered affirmatively to Question 1 had also voted for the disability percentage inserted in Question 3. This verdict was received by the court and upon it the court subsequently entered its judgment. Plaintiff contends that the court erred in refusing to receive the verdict first returned by the jury in the above cause.

Two jurors who disagreed with the majority's view that the injury had become aggravated agreed with seven other jurors that the disability was equivalent to 70% Loss function of an arm. Yet an order was made by the commission on December 9, 1963, awarding Munger for a disability equivalent to 35% Loss function of an arm. No appeal having been taken from that order, it is conclusive as to the disability on that date. Grunnett v. State Ind. Acc. Com., 108 Or. 178, 184, 215 P. 881. The conclusion of the two jurors was therefore inconsistent.

The Oregon Constitution provides that, 'in civil cases three-fourths of the jury may render a verdict.' Art. VII, § 5. In construing this provision of the constitution, we held in Clark v. Strain et al., 212 Or. 357, 364, 319 P.2d 940, 943:

'* * * (T)he minimum legal number of jurors required for a valid verdict must be the same jurors voting similarly on each separate issue demanding resolution.'

This court interpreted the same section of the constitution again in the case of Shultz v. Monterey, 232 Or. 421, 424, 375 P.2d 829, 830, saying:

'Article VII, § 5, of the Oregon Constitution requires the concurrence of three-fourths of the jury to render a verdict in civil cases. This means that not less than nine jurors must agree to the verdict and the same nine jurors must agree on all issues determined by the verdict.

Clark v. Strain et al, 212 Or. 357, 364, 319 P.2d 940 (1958); Freeman v. Wentworth & Irwin, Inc., 139 Or. 1, 15, 7 P.2d 796 (1932). The poll of the jury in the case at bar revealed that only eight jurors agreed to the verdict, while four of the jurors disagreed as to one or more of the issues determined thereby. Under those circumstances the verdict was invalid and should not have been received. The jury should have been sent out for further deliberation. ORS 17.355(2).'

The appellant claims that since both decisions cited above dealt with 'general' rather than 'special' verdicts, they are not controlling in the case at bar.

ORS 656.290(1), the code provision that governed appeals to the circuit court in Workmen's Compensation cases, provided ² as follows:

'If the court determines that the commission has acted within its power and has correctly construed the law and facts, the decision of the commission shall be confirmed; otherwise, it shall be reversed or modified. However, in case of any trial of fact by a jury, the court shall be bound by the decision of the jury as to the question of fact submitted to it.'

That section has been construed to mean that this type of action is in the nature of a special proceeding with the verdict of the jury corresponding to a special verdict of the jury in other law actions. Paul et al. v. State Industrial Acc. Com., 127 Or. 599, 610, 272 P. 267, 273 P. 337.

An integrated verdict of the type presented here--one in which the answer to a question is dependent on the answer to a previous question and both are necessary to the determination of the final verdict--does not differ in principle from a general verdict. Concerning special verdicts, this court has stated:

'It is a general rule that a special verdict must state all the facts essential to a recovery, and that nothing can be supplied by intendment. 2 Thompson on Trials (1st Ed.) § 2651. As to construction, a special verdict, like other instruments of writing, Must be taken as a whole, and all material facts which it finds must be considered together.' Abraham v. Mack et al., 130 Or. 32, 40, 273 P. 711, 713, 278 P. 972. (Emphasis supplied.)

Only four jurisdictions have considered this question. All but one have declared that the minimum legal number of jurors required must be the same jurors voting similarly on each question.

In Plaster v. Akron Union Passenger Depot Co., 101 Ohio App. 27, 137 N.E.2d 624, the same nine jurors who signed a special interrogatory finding the defendant guilty of negligence did not sign the general verdict. The Ohio court stated:

'In such a situation as is here present, the requisite number of jurors must agree upon all...