Pitcher v. Lakes Amusement Co.
Decision Date | 17 December 1975 |
Docket Number | No. 2--57158,2--57158 |
Citation | 236 N.W.2d 333 |
Parties | Barbara 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. |
Court | Iowa 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.
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:
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):
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:
(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:
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.
After identifying the constitutional provisions which preserved the right to a jury trial the study pointed out:
'Two propositions are fundamental:
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