Pitcher v. Lakes Amusement Co.

Decision Date17 December 1975
Docket NumberNo. 2--57158,2--57158
Citation236 N.W.2d 333
PartiesBarbara Sue PITCHER, a minor, by her father and next friend, Arlo Pitcher, and Arlo Pitcher, Individually, Appellants, v. LAKES AMUSEMENT COMPANY, a corporation, et al., Appellees.
CourtIowa Supreme Court

Fitzgibbons Brothers, Estherville, and Grathwol, Ploetz, Oberhauser & Nodland, Wayzata, Minn., for appellants.

James, Greer, Hoover, Nelson & Bertell, Spencer, and Erickson, Zierke, Kuderer & Utermarck, Fairmont, Minn., for Gerald R. Anderson, d/b/a Bloomquist Bus Service, appellee.

Wilson, Rhinehart & Bikakis, Sioux City, for Lakes Amusement Co., appellee.

Pendleton & Pendleton, Storm Lake, for Cabot Welchlin, appellee.

Considered en banc.

HARRIS, Justice.

This appeal challenges the constitutionality of a procedural rule providing for nonunanimous jury verdicts. The challenge is based on Article I, § 9, of the Iowa Constitution which the trial court found was not offended by the rule. We agree and affirm the trial court.

The facts are of limited significance in determining this appeal. On June 6, 1970 Barbara Sue Pitcher, then age 12, was injured while riding on a roller coaster in an amusement park. Her father brought this action in her behalf and his own against the amusement park, a bus service which supervised the excursion group in which Barbara was a member, and a youth involved in the incident. A jury trial resulted in a verdict for defendants.

The sole issue on appeal is plaintiffs' challenge to rule 203(a), Rules of Civil Procedure, which allows nonunanimous jury verdicts. The rule provides as follows:

'* * * Before a * * * verdict (is) returned, the parties may stipulate that the finding may be rendered by a stated majority of the jurors. In the absence of such stipulation, a * * * verdict * * * may be rendered by five-sixths of the jurors. However, no * * * verdict * * * may be rendered by five-sixths of the jurors or less until the jurors have deliberated for a period of not less than six hours after the issues to be decided have been submitted to them.'

It is agreed the case must be affirmed if the foregoing rule can withstand plaintiffs' claim that it violates Article I, § 9 of the Iowa Constitution. It provides: 'The right of trial by jury shall remain inviolate; but the General Assembly may authorize trial by a jury of a less number than twelve men in inferior courts; * * *.'

I. The provision for a five-sixths jury verdict in this state is of rather recent origin. It was included in our report to the first regular session of the 65th G.A. in 1973. Under the procedure outlined in §§ 684.18 and $684.19, The Code, we report to the legislature changes in the rules of pleading, practice and procedure. Rules so reported, together with any changes thereafter enacted by the legislature, take effect the following July 1. Under this scheme the last sentence of rule 203(a), R.C.P. was enacted by the legislature. Acts of the 65th G.A., 1973 Regular Session, ch. 315, § 4.

Background for the question presented was well described in an annotation at 47 A.L.R.3d 895, 896 (1973):

'As one legal writer (Helwig, The American Jury System: A Time for Reexamination. 55 Judicature 96 (1971)), has observed, if, only a few years ago, one were to have searched for a feature of American jurisprudence which could properly be characterized as impervious to change, he might well have selected the system of trial by jury. Already centuries old by the time the Federal Constitution was adopted, the right of trial by jury was recognized as fundamental to our system of justice in that document, as well as in the constitutions of the various states.'

The essential elements in the right to a trial by jury were described by the United States Supreme Court in Patton v. United States, 281 U.S. 276, 288, 50 S.Ct. 253, 254, 74 L.Ed. 854, 858 (1930) as follows:

'* * * (W)e first inquire what is embraced by the phrase 'trial by jury.' That it means a trial by jury as understood and applied at common law, and includes all the essential elements as they were recognized in this country and England when the Constitution was adopted, is not open to question. The elements were: (1) That the jury should consist of twelve men, neither more nor less; (2) that the trial should be in the presence and under the superintendence of a judge having power to instruct them as to the law and advise them in respect of the facts; and (3) That the verdict should be unanimous.' (emphasis added)

We approved and adopted the foregoing language verbatim in State v. Sereg, 229 Iowa 1105, 1115, 296 N.W. 231, 236 (1941). In Sereg we held the presence and superintendence of a judge to be essential. Similarly we have five times held a verdict by a jury of less than 12 is unconstitutional under Article I, § 9 of our constitution. State v. Walker, 192 Iowa 823, 185 N.W. 619 (1921); Kelsh v. The Town of Dyersville, 68 Iowa 137, 26 N.W. 38 (1885); Eshelman v. The Chicago, Rock Island & Pacific R'y Co., 67 Iowa 296, 25 N.W. 251 (1885); Higgins v. Farmers Ins. Co., 60 Iowa 50, 14 N.W. 118 (1882); and Cowles v. Buckman & Son, 6 Iowa 161 (1858).

These opinions show our views on the essentials of a jury trial traditionally have edhoed those of the United States Supreme Court. As we have seen, dicta in some cases indicated a nonunanimous verdict would be improper. Walker, supra; Sereg, supra. It is understandable why concepts of a jury trial under the federal and various state constitutions settled on the developed understanding of the common law. Those first called upon to interpret and constitutionally define a jury trial had recent, almost current, experience with the common law concepts on juries. These concepts had been centuries in their development.

Time has increasingly demonstrated it was illogical to freeze forever our conception of a jury trial. The features of a jury trial had been developed, not perfected. As observed by the United States Supreme Court one of the features '* * * appears to have been a historical accident, unrelated to the great purposes which gave rise to the jury in the first place. * * *.' Williams v. Florida, 399 U.S. 78, 89--90, 90 S.Ct. 1893, 1900, 26 L.Ed.2d 446, 454 (1970).

Passing time increased the tension between the rigid and fixed definition of a jury trial and changing views on the validity of its various essentials. This tension was but one example of the broader experience in American constitutional law. From obvious necessity a carefully limited flexibility was developed in the construction of constitutions. See 16 Am.Jur.2d, Constitutional Law, § 61, pp. 234--236. Constitutions must have enough flexibility so as to be interpreted in accordance with the public interest. This means they must meet and be applied to new and changing conditions. We eventually freed ourselves from the private views of the constitution's framers which were in many cases but accidents of history:

'* * * (I)n determining whether a provision of the Constitution applies to a new subject matter, it is of little significance that it is one with which the framers were not familiar. For in setting up an enduring framework of government they undertook to carry out for the indefinite future and in all vicissitudes of the changing affairs of men, those fundamental purposes which the instrument itself discloses. Hence we read its words, not as we read legislative codes which are subject to continuous revision with the changing course of events, but as the revelation of the great purposes which were intended to be achieved by the Constitution as a continuing instrument of government. (Authorities) * * *.' United States v. Classic, 313 U.S. 299, 316, 61 S.Ct. 1031, 1038, 85 L.Ed. 1368, 1378 (1941).

Those interested in judicial administration have long challenged the holdings and dicta which thus froze the features of jury trial. An influential article, reflecting unusual scholarship, appeared in 1918. Scott, Trial by Jury and the Reform of Civil Procedure, 31 Harv.L.Rev. 669 (1918). Scott demonstrated the common law definition of a jury trial was a moving target.

'Perhaps the most striking phenomenon in the history of our procedural law is the gradual evoluation of the institution of trial by jury. The jury as we know it today is very different from the Frankish and Norman inquisition, out of which our modern jury has been slowly evolved through the centuries of its 'great and strange career.' It is different from the assizes of Henry II., that great reformer of procedural law. It is different from the trial by jury known to Lord Coke and to the early American colonists who carried to a New World the principles of English jurisprudence. 'To suppose,' says Edmund Burke, 'that juries are something innate in the Constitution of Great Britain, that they have jumped, like Minerva, out of the head of Jove in complete armor is a weak fancy, supported neither by precedent nor by reason.' In England there has been a wonderfully steady and constant development of trial by jury from the Conquest to the present day. In this country surely it was not, by the adoption of our constitutions, suddenly congealed in the form in which it happened to exist at the moment of their adoption. The procedure of the first half of the seventeenth century or of the second half of the eighteenth century surely was not 'fastened upon the American jurisprudence like a strait-jacket, only to be unloosed by constitutional amendment.' The common-law practice described so painstakingly by the learned Mr. Tidd surely did not bodily become a part of the organic law of the United States.' Id. 669--670.

After identifying the constitutional provisions which preserved the right to a jury trial the study pointed out:

'Two propositions are fundamental:

'First. Whatever was an incident or characteristic of trial by jury in a particular jurisdiction at the time of the adoption of the constitutional guaranty in that jurisdiction is not...

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