Stevens v. Travelers Ins. Co.

• Decision Date: 15 February 1978
• Docket Number: No. B-7006,B-7006
• Citation: 563 S.W.2d 223
• Parties: Geraldine STEVENS, Individually and as Administratrix of the Estate of Louis Morris Stevens, Deceased, Petitioner, v. The TRAVELERS INSURANCE COMPANY, Respondent.
• Court: Texas Supreme Court

Page 223

563 S.W.2d 223

Geraldine STEVENS, Individually and as Administratrix of the Estate of Louis Morris Stevens, Deceased, Petitioner, v. The TRAVELERS INSURANCE COMPANY, Respondent.

No. B-7006.

Supreme Court of Texas.

Feb. 15, 1978.

Rehearing Denied March 8, 1978.

O. Joseph Damiani, Houston, J. Michael Cunningham, Midland, for petitioner.

Vinson & Elkins, Robert A. Rowland, III, Houston, for respondent.

STEAKLEY, Justice.

Louis Morris Stevens was killed on October 21, 1973, when the automobile he was driving crashed into a bridge abutment. He was insured in event of accidental death by the Travelers Insurance Company, Respondent here, through membership in the Exxon Travel Club, Inc. A beneficiary was not named in the policy. Our Petitioner, Geraldine Stevens, Individually and as Administratrix of the Estate of Louis Morris Stevens, sued to recover the proceeds of the policy. Travelers answered by denying that the death of Stevens was accidental, and alleged that he committed suicide.

A mistrial was declared in the first trial after the jury was unable to reach a verdict. In the second trial the jury, after deliberating four hours, sent a note to the Court as follows:

"Your Honor: We are deadlocked at 8 to 4 and have been for well over an hour. An individual poll of the jurors indicates there is no likelihood of a change.

May we have your instructions?"

There followed an inconclusive conference of the court with counsel for both parties in chambers. The court then orally gave the jury a supplemental charge, his recollection of which, as modified at the instance of counsel for Travelers, was dictated into the record nunc pro tunc, as follows:

"Ladies and Gentlemen of the jury, I have your note that for the past hour you have been deadlocked by a vote of 8 to 4. You request further instructions. This Case has been ably tried by lawyers, experienced, of long standing, and in the interest of justice, if you could end this litigation by your verdict, you should do so.

"What is more, ending it will meet with the approval of the Court. I don't mean to say by that that any individual person on the jury should yield his own conscience and positive conviction, but I do mean that when you are in the jury room, you should discuss this matter among yourselves carefully and listen to each other, and try, if you can, to reach a conclusion on the issues. It is the duty of jurors to keep their minds open and free to every reasonable argument that may be presented by fellow jurors that they may arrive at the verdict which justly answers the consciences of the individuals making up the jury. A juryman should not have any pride of opinion, and should avoid hastily forming or expressing an opinion. He should not surrender any conscientious views founded upon the evidence unless convinced by his fellow jurors of his error.

"It has cost the taxpayers of Harris County considerable expense to have this case tried before a Jury over the past week.

"I am satisfied ladies and gentlemen that you have not deliberated sufficiently so that, in good conscience, I can accept a report that you cannot arrive at an agreement. It will take considerably more time before anyone can satisfy me as to that. Accordingly, I return you to your deliberations." ¹

The jury then deliberated 20 minutes and asked to be excused for the weekend. The jury reconvened the following Monday morning and, after deliberating approximately four hours returned a verdict, concurred in by ten jurors, in which it was found that the death of Stevens was caused by accident and that it was not caused by suicide. Based thereon, the trial court entered judgment for Mrs. Stevens. Upon appeal, the Court of Civil Appeals, citing Texas Midland R.R. v. Brown, 228 S.W. 915 (Tex.Com.App.1921) and Missouri, K. & T. Ry. of Texas v. Barber, 209 S.W. 394 (Tex.Com.App.1919), ruled that the supplemental charge was coercive to the minority jurors and impermissible. Citing also Gulf, C. & S.F. Ry. Co. v. Johnson, 99 Tex. 337, 90 S.W. 164 (1905), the Court of Civil Appeals emphasized that it is improper for a court to advise the jurors on the manner in which they are to reach their verdict. The judgment of the trial court was reversed and the cause remanded for another trial. 553 S.W.2d 232. We reverse the judgment of the Court of Civil Appeals and affirm that of the trial court.

The essential position of Mrs. Stevens is that Johnson and Brown are distinguishable because the charges there condemned were not given here. She concedes that Barber is in point in condemning an instruction on wastefulness but argues that the decision is out of harmony with the realities of today's world and should be overruled.

The essential position of Travelers is that all instructions which urge the jury to return a verdict should be declared to be impermissible as coercive on jurors of the minority in the announced deadlock. It argues that under all such charges the minority will feel more pressure to conform to the views of the majority than the latter to the views of the former; that such charges place the sanction of the court upon the majority; and that these types of charges constitute judicial interference in the fact finding process. Travelers further contends that this particular charge conflicts with the decisions in Johnson, Brown, and Barber.

I. VERDICT-URGING INSTRUCTIONS IN GENERAL

Instructions such as that here in question have often been referred to as "dynamite" or "Allen" charges. The first reference is to the supposed effect of the charge; that is, to "blast" a jury from deadlock to verdict. The second reference is to the charge approved in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). In Allen, a criminal prosecution, the U. S. Supreme Court approved a charge which instructed the members of the minority of a deadlocked jury to reconsider their position in light of the fact that a larger number of their panel were of the opposite view. The particular charge in Allen ² has been the subject of much critical commentary since its approval and appears now to have been rejected by a majority of jurisdictions for use in criminal cases. See, e. g., People v. Gainer, 139 Cal.Rptr. 861, 566 P.2d 997 n. 8 (Cal.1977); Note, 50 Tulane L.Rev. 706 (1976); The Allen Charge Dilemma, 10 Am.Crim.L.Rev. 637 (1972); Note, 53 Va.L.Rev. 123 (1967); WIEHL, Instructing A Jury in Washington, 36 Wash.L.Rev. 378 (1961); Note, 25 Vand.L.Rev. 246 (1972); Note, 25 Ark.L.Rev. 542 (1972); Note, 13 W. & M.L.Rev. 672 (1972). See also, ABA Standards Relating To Trial By Jury, § 5.4 (Project on Minimum Standards for Criminal Justice, 1968). ³

Instructions other than the particular "Allen Charge" which, in less objectionable terms, urge juries to return verdicts have also been the subject of extensive litigation and commentary. See, e. g., cases collected in Annot. 38 A.L.R.3d 1281 (1971); Annot. 41 A.L.R.3d 845 (1972); Annot. 41 A.L.R.3d 1154 (1972). See also, Comment, INSTRUCTING DEADLOCKED JURIES: THE PRESENT STATUS OF THE ALLEN CHARGE, 3 Tex.Tech.L.Rev. 313 (1972); Note, 9 Hous.L.Rev. 570 (1972); Note, 78 Yale L.Rev. 100 (1968). These less overtly coercive instructions are used in both criminal and civil cases and, except as to the requirement of unanimous verdicts in criminal prosecutions, are essentially similar. It appears that in civil cases a majority of jurisdictions do not prohibit such instructions as a matter of course; but rather analyze the propriety of a particular charge by its terms, and in the light of the circumstances under which it was given. See, e. g., Taylor v. Murray, 102 Ga.App. 145, 115 S.E.2d 776 (Ga.App.1960). See generally cases collected in Annot. 38 A.L.R.3d 1281, 1291-96 (1971).

At least one commentator has read our decision in Gulf, C. & S.F. Ry. Co. v. Johnson, supra, as a possible bar to all verdict-urging instructions. See Annot. 38 A.L.R.3d 1281 at 1290; Annot. 41 A.L.R.3d 845 at 854; Annot. 41 A.L.R.3d 1154 at 1164. We do not so interpret the case. Johnson involved an inquiry, made after two days of fruitless deliberation, in which the jury asked whether it was ". . . legal and right for a jury, in case they have failed to agree upon a verdict in a case, to make concessions in order to agree upon a verdict?" The trial judge, in response, instructed the jury that ". . . it is entirely lawful and proper to make concessions, provided, of course, your verdict, as agreed to, is based alone upon the law as given in the charge and the facts as you find them from the evidence." This court held the instruction was impermissible. The basis for this holding was not that the charge coerced a verdict from an unwilling jury; but, rather, it was that the instruction invaded a forbidden area when it addressed the subject of concessions and compromises in the jury room. This rationale is not a blanket condemnation of verdict-urging instructions but is a condemnation of the charge as it was given. Quoting from Richardson v. Coleman, 131 Ind. 210, 29 N.E. 909 (1892), the court said:

The fundamental objection to such instructions is that the law, in our opinion, prescribes no rule for the court to lay down, except that the jury are to find in accordance with the truth as their judgments, honestly applied to the evidence, lead them to believe it to be, or, as their oath expresses it, 'that they will a true verdict render according to the law . . . and the evidence.'

90 S.W. at 165.

Although there is no precedential restriction on the authority of trial judges to give properly worded verdict-urging instructions, the serious questions presented by Travelers' argument that all such charges are inherently coercive must be considered before their continued use is sanctioned.

Any supplemental charge, such as the original Allen charge, which is addressed specifically to the minority jurors of a deadlocked panel is expressly and inherently coercive. With this...