Perricone v. Kansas City Southern Ry. Co., 81-2514

• Decision Date: 19 May 1983
• Docket Number: No. 81-2514,81-2514
• Citation: 704 F.2d 1376
• Parties: Luke Joseph PERRICONE, Plaintiff-Appellee, United States Fidelity and Guaranty Company, Intervenor-Appellee, v. The KANSAS CITY SOUTHERN RAILWAY COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1376

704 F.2d 1376

Luke Joseph PERRICONE, Plaintiff-Appellee United States Fidelity and Guaranty Company, Intervenor-Appellee, v. The KANSAS CITY SOUTHERN RAILWAY COMPANY, Defendant-Appellant.

No. 81-2514.

United States Court of Appeals Fifth Circuit.

May 19, 1983.

Roger S. McCabe, Beaumont, Tex., Brian R. Davis, Austin, Tex., for defendant-appellant.

Gilbert T. Adams, Jr., Richard J. Clarkson, Beaumont, Tex., for Perricone.

W.E. Harper, Beaumont, Tex., for U.S. Fidelity and Guar. Co.

Appeal from the United States District Court for the Eastern District of Texas.

Before RANDALL and HIGGINBOTHAM, Circuit Judges, and BUCHMEYER^*, District Judge.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

In this diversity case the railroad appeals from a judgment awarding damages to a motorist for injuries suffered when the bottom of his car struck the railroad's tracks at a crossing. The railroad argues that the trial court erred in sua sponte resubmitting the case to the jury after explaining to them the effect of their returned answer that the motorist was 70 percent negligent, in granting plaintiff a full award on a judgment n.o.v. despite the jury's finding following the second submission that the motorist's negligence was 50 percent, and in ordering a conditional new trial. The railroad also argues that the jury's damage award was excessive and a new trial on damages must be had. We affirm the giving of the supplemental instruction in the absence of contemporaneous objection. Because there was no predicate motion for directed verdict and there was in any event sufficient evidence to create a jury issue of contributory negligence we reverse the judgment n.o.v. We also reverse the district court's conditional grant of a new trial and affirm the jury's damage verdict.

This is the second appellate trip for this case. On its first trip we reversed a jury award of $170,000 as excessive and discovering other error reversed the finding of liability. Perricone v. Kansas City Southern Railway Co., 630 F.2d 317 (5th Cir.1980).

After a second trial the jury returned its verdict setting Perricone's damages at $105,000 but also found that his injuries were 70 percent attributable to his negligence. When the clerk read the jury's answers in open court the judge immediately told the jury:

Mr. Foreman and members of the Jury, the Court failed to advise the Jury, and we feel that under the circumstances we should that if you find the Plaintiff more than fifty percent negligent, in other words, you find the Plaintiff more negligent than the Defendant, he will not be able to make any recovery of any damages, whatever. The Court should have advised the Jury of this fact at the time that it was submitted to you, and if you would like to reconsider your verdict, in view of this information, then the Court will give you the privilege of doing so. Now, you might retire to the jury room and decide what you wish to do in this regard....

The jury deliberated for fourteen minutes and returned the same damage verdict but reduced to 50 percent Perricone's contribution to his injury. While the jury was deliberating for the second time the trial judge invited objections to his supplemental instruction. The railroad's only objection was as follows:

The Defense would object to the Court's referencing the amount of reduction of damages, in that there was explained in full to the Jury initially how not to reduce the damages. The Defense objects to that portion of the additional instructions to the Jury.

In other words, the railroad objected neither to the act of resubmission, nor to the jury's being told that a finding of more than 50 percent contributory negligence would bar plaintiff's recovery. Its only quibble was with the trial judge's statement that a finding of 50 percent or less contributory negligence would mean a pro rata reduction in the plaintiff's recovery.

After the second verdict was received the trial judge on his own motion granted a judgment for the full $105,000, notwithstanding the finding of 50 percent contributory negligence. He also granted a new trial conditioned on the reversal of the judgment n.o.v.

The Supplemental Instruction

The supplemental instruction would ordinarily have been a correct charge in federal court. Under Texas law a plaintiff cannot recover if his negligence contributed more than one half to his injury. In a Rule 49(a) submission it is proper to tell the jury the effect of their answers to interrogatories. Gonzales v. Missouri Pacific Railroad Co., 511 F.2d 629, 632 (5th Cir.1975). The trial judge did not explain the effect of a finding of greater than 50 percent contributory negligence in the charge he first gave. No party requested him to do so or objected to his not doing so.

It does not follow, however, that the instruction should have been given after the jury returned their answers in open court. There is a substantial risk that such a supplemental instruction given immediately to the jury on its return is coercive. It contains the risk that the jury may conclude that it is being told its finding of 70 percent contributory negligence was unsound. That risk was reduced by the instruction that the trial court gave. There was nothing coercive or suggestive in its content. It was phrased in a neutral manner and accurately expressed the law. There remains, nonetheless, a not inconsiderable risk. The trial judge is a potent figure indeed. His instructions are lethal. He can communicate his attitude in a thousand ways from a cocked eyebrow to a sideways glance. Those will not be of record. They are not reviewable. Trial judges are disciplined ultimately only by their good faith and integrity and by an occasional reminder from their appellate brethren to be constantly vigilant of their power.

Intersecting with these practical concerns about power is the mandate of the Seventh Amendment. We have said:

Entry of judgment upon a jury's special verdict with written findings of fact is subject not only to precedential guidelines but to a constitutional restraint as well. The Seventh Amendment requires that if there is a view of the case which makes the jury's answers consistent, the court must adopt that view and enter judgment accordingly. [Citation omitted.] This court has stated that the test to be applied in reconciling apparent conflicts between the jury's answers is whether the answers may fairly be said to represent a logical and probable decision on the relevant issues as submitted, even though the form of the issue or alternative selective answers prescribed by the trial judge may have been the likely cause of the difficulty and largely produced the apparent conflict. [Citation omitted.]

Griffin v. Matherne, 471 F.2d 911, 915 (5th Cir.1973). The Seventh Amendment should not be invoked as a justification for keeping the jury in the dark about the legal effects of their answers. Yet it should not normally justify "reconsideration" of those answers, either.

We describe only institutional risks. Nothing in this record suggests that the trial judge intended to tell the jury more than he did. We find, nonetheless, that there is such a high risk of being misunderstood that the instruction ought not have been given. We are mindful that there is a risk that the jury's will was not expressed by its final verdict in that it intended to award 30 percent of $105,000 rather than 50 percent of that amount. We have then a risk of the jury's will being frustrated whatever the trial court did. Choosing to remain silent is in fact a decision to accept the risk that the jury did intend to express relative fault in an award of 30 percent of $105,000. This Hobson's choice, however, could have been avoided by a request that the jury be instructed at the outset or by an explanation of the legal effects of answers during closing argument. Because there is a balance to be struck and the trial judge is on the scene we are not prepared to find this error to be so fundamental as to survive the absence of objection. The result of the path we follow is that while we are aware of the risks of such a supplemental instruction, we will not listen to counsel complain about the trial judge's call when he then uttered not a peep--even though the judge specifically invited any objection. See Ballou v. Henri Studios, Inc., 656 F.2d 1147, 1156 (5th Cir.1981).

The railroad maintains that it should not be deemed to have "waived" error when it had nothing to gain by failing to object. The railroad contrasts this case with Safeway Stores, Inc. v. Dial, 311 F.2d 595 (5th Cir.1963), in which some of the jury's answers suggested negligence while others did not and thus failure to object to resubmission could have been a "tactical gamble." Yet the avoidance of gamesmanship is not the only policy that the contemporaneous objection rule seeks to vindicate. Refusing to routinely consider arguments not made to the trial court is an essential by-product of its distinct institutional rule. We have previously recognized that a "waiver" may occur even when the waiving party's silence could not have been strategic. See Ballou v. Henri Studios, 656 F.2d 1147.

We have not found any case from our circuit reviewing a trial court's decision to return a case to the jury when the answers were not legally inconsistent. In Morrison v. Frito-Lay, Inc., 546 F.2d 154 (5th Cir.1977), we held that "in its discretion, the trial court may submit one or more interrogatories to the jury for the purpose of harmonizing apparent inconsistencies or ambiguities when such harmonization and resolution of ambiguities might properly be performed by the court itself ..." Id. at 161. In Morrison, however, the jury had answered yes to an interrogatory on the existence of contributory negligence but 0 percent to an interrogatory on the percentage of contributory negligence. Here by contrast there were no legally inconsistent responses to be harmonized.

In McCollum v....