Parker, C.J., and Wise, Mendheim, and Stewart, JJ., dissent.
BOLIN, Justice (concurring specially).
I concur in affirming the judgment of the trial court. I write specially to object to the Chief Justice's dismissive treatment, in his dissent, of the valuable service provided to our trial courts and to the bar by the Alabama Pattern Jury Instructions Committee (Civil).
In addressing the matter, I initially explain the history of pattern jury instructions in general and acknowledge with gratitude the countless hours the committee members of the Alabama Pattern Jury Instructions Committee (Civil), both past and present, have put into serving the trial courts, the bar, the litigants, and the juries in this State over the past half century.
One law-review article has explained the development of pattern jury instructions as follows:
"Originally, there was a rule in England that judges were not supposed to instruct jurors at all; they could only answer questions. Even then, the answers to jury questions were not always very helpful. In the 1314 case of Abbot of Tewkesbury v. Calewe, a jury was asked to decide whether certain land was ‘free alms’ or ‘lay fee.’ They pointed out to the judge, ‘We are not men of law,’ implicitly requesting his assistance. The judge replied, ‘Say what you feel.’ This is the problem, of course. If a judge does not explain to the jury what it is supposed to do, the jury will do what it feels is best. This is precisely the sort of arbitrary decision making that the rule of law seeks to prevent.
"Eventually, judges in England did begin to instruct jurors on the law. But even today, English jury instructions (part of the judge's ‘summation’) remain oral and relatively informal. The judge summarizes the facts and possible inferences to be drawn from them and then tells jurors in his own words what the relevant law is.
"As in England, American judges originally did not instruct jurors on the law. Jurors were expected to use their common sense. Common sense may have worked well enough when the country was largely rural. But as the country industrialized, legal disputes became more complex and the need for consistently applied rules of law became more pressing. Eventually, jurors lost the right to decide questions of law. Additionally, toward the end of the nineteenth century, many states took away the power of the judge to charge juries on the facts. Thus arose the modern division of labor in which the judge decides the law and the jury is entrusted with the facts. Inevitably, jurisdictions began to require the judge to instruct the jury on the relevant law.
"The legal profession soon came to realize that instructing the jury could involve a lot of work and duplication of effort. With every trial, judges and attorneys would spend time drafting the instructions. Another problem was that instructions were often inconsistent from judge to judge. And judges were often reversed for instructional error.
"In 1935, Judge William J. Palmer of the Superior Court of Los Angeles, California addressed some of these issues in an article recommending that a committee be formed to compile approved instructions for civil cases. The presiding judge of the court was impressed by the idea and appointed a committee of lawyers and judges to accomplish this goal. The committee published a book of instructions a few years later. The descendant of this book of instructions is still used in California, where it is known as the Book of Approved Jury Instructions (‘BAJI’). A similar book of criminal instructions, California Jury Instructions: Criminal (‘CALJIC’) soon followed. The venture was a tremendous success and has since been imitated by many other states."
The Rocky Road to Legal Reform: Improving the Language of Jury Instructions, 66 Brooklyn L. Rev. 1081, 1082–84 (2001) (footnotes omitted).
In Alabama, an effort was undertaken to simplify civil jury instructions in 1967 by the Alabama Program of Continuing Legal Education, with the support of the Alabama Association of Circuit Judges, the Alabama Defense Lawyers Association, and the Alabama Trial Lawyers Association and with the cooperation of the Alabama State Bar. The goal of the resulting committee was, and still is, as this Court stated in a 1973 order, "to formulate and compile model jury charges for use by the Bench and Bar which would be concise, legally accurate, unslanted, and in simple language understandable by lay jurors."
By an order adopted in 1973, this Court "approved" the use of pattern jury instructions, stating in that order that pattern jury instructions would be an "invaluable aid to trial judges of this State in charging juries in civil cases." The Court recommended publication of the pattern jury charges and their use by the bench and bar. The Court noted, although the instructions appeared accurate, the instructions were patterns only, and "should be altered or changed as circumstances indicate." Thus, the Court recommended the use of the pattern charges, but without prejudice to the rights of any litigant to make and reserve for review any objections thereto -- either to form, substance, or application. The Alabama Pattern Jury Instructions Committee (Civil) ("the Committee") does not submit the pattern instructions to this Court before their publication. Although this Court "approved" the publication of the pattern instructions for use in trial courts in Alabama, it did not "preapprove" the pattern jury charges written by the Committee as being omnipresent, omnipotent, and all-encompassing -- applicable in their unaltered form to every possible factual scenario conceivable in civil litigation, then and in the future.
I quote the following steps set out in the first edition of the Alabama Pattern Jury Instructions - Civil, outlining the efforts to create a finished product:
"PREFACE
"In early 1967 a determined effort was undertaken to simplify one of the basic facets in the trial of civil jury cases, the matter of instructing juries. This objective became the project of the Alabama Program of Continuing Legal Education under the directorship of Honorable Douglas Lanford with the active support of the Alabama Association of Circuit Judges, the Alabama Defense Lawyers Association and Alabama Trial Lawyers Association, with the cooperation of the Alabama State Bar.
"A committee made up of members of these organizations was established and was composed of the following:
"Judge James N. Bloodworth, Chairman, of Decatur
"Judge Ingram Beasley, Vice Chairman, of Birmingham
"Judge Will G. Caffey, Jr. of Mobile
"Judge William C. Sullivan, of Talladega
"H.R. Burnham, of Anniston
"Richard L. Jones, of Birmingham
"Janie L. Shores, of Birmingham
"Regular monthly meetings of one day duration were held during the succeeding years. As time passed, vacancies on the original committee occurred through the personal success of various members and recognition of their professional abilities. The original Chairman, Judge James N. Bloodworth, left to become an Associate Justice on the Supreme Court of Alabama. He was replaced as Chairman in 1968 by Judge Ingram Beasley. Judge Will G. Caffey, Jr., left the Circuit bench in Mobile and the committee to become a United States Referee in Bankruptcy. He was replaced by Circuit Judge Reneau P. Almon, of Moulton, who in turn left the committee upon his appointment to the Alabama Court of Criminal Appeals. Judge Edward N. Scruggs thereupon joined the committee, as did Judge George Murphy, and Judge Robert E.L. Key. Richard L. Jones became an Associate Justice on the Supreme Court of Alabama in 1972, but continued as a member of the committee, which was composed of the following at the time of publication:
"Judge Ingram Beasley, Chairman, of Birmingham
"Judge William C. Sullivan, Vice Chairman, of Talladega
"Judge Robert E.L. Key, of Evergreen
"Judge George Murphy, of Gadsden
"Judge Edward N. Scruggs, of Guntersville
"H.R. Burnham, of Anniston
"Justice Richard L. Jones, of Birmingham
"E.C. Hornsby, of Tallassee
"Professor Janie L. Shores, of Birmingham
"Subcommittee members serving at various times during the six years were:
"T. Rueben Bell, of Sylacauga
"Ollie L. Blan, Jr., of Birmingham
"Timothy M. Conway, Jr., of Birmingham
"Albert W. Copeland, of Montgomery
"A. Neil Hudgens, of Mobile
"Irvin J. Langford, of Mobile
"Robert B. Propst, of Anniston
"J.M. Sides, of Anniston
"J. William Thomason, of Bessemer
"George F. Wooten, of Talladega
"Judge Leigh M. Clark, of Birmingham
"Mable B. Fitch
"....
"... No citations in this volume should be construed as an indication that Alabama courts will necessarily adopt rules from other jurisdictions which may be stated in the material cited."
After considerable work and six years after the Committee was formed, the Committee issued its report to this Court in 1973, as captioned and stating:
"REPORT TO THE SUPREME COURT
"MAY IT PLEASE THIS HONORABLE COURT
"The Alabama Jury instructions Committee begs leave to report to Your Honors as follows:
"The Alabama Pattern Jury Instructions Committee was created by the Alabama Circuit Judges Association, the Alabama Plaintiff's Lawyer's Association and the Alabama Defense Lawyer's Association in 1967 for the purpose of research and drafting model charges for use in civil cases by the judges and lawyers of this State.
"The committee is deeply indebted to the Alabama Program of Continuing Legal Education for its financial assistance and to the
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