Tillman v. Thomas

• Decision Date: 27 October 1978
• Docket Number: No. 12437,12437
• Citation: 585 P.2d 1280,99 Idaho 569
• Parties: Arthur TILLMAN, Plaintiff-Appellant, v. Harold E. THOMAS and Martin W. Rust, aka Henry Rust, dba Allison Ranch and Paul Schild, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 1280

585 P.2d 1280

99 Idaho 569

Arthur TILLMAN, Plaintiff-Appellant, v. Harold E. THOMAS and Martin W. Rust, aka Henry Rust, dba Allison Ranch and Paul Schild, Defendants-Respondents.

No. 12437.

Supreme Court of Idaho.

Oct. 27, 1978.

Michael W. Moore of Imhoff, Lynch & Davis, Boise, for plaintiff-appellant.

Phillip M. Barber of Elam, Burke, Jeppesen, Evans & Boyd, Boise, for defendants-respondents.

BAKES, Justice.

Plaintiff appellant Arthur Tillman sued defendants respondents Harold Thomas and Martin Rust (a partnership doing business as Allison Ranch and hereinafter referred to as Allison) and Allison's employee Paul Schild for personal injuries Tillman sustained on a hunting trip. Responding to separate questions contained in a special verdict form provided by the trial court, a jury found that neither Allison nor Schild was guilty of negligence that proximately caused the accident. Tillman appeals from the resultant judgment, claiming that irregularities in the jury's voting pattern invalidate its verdict. We affirm.

The factual background of this case is relatively simple. Tillman paid Allison to take him on a hunting trip. Allison provided Tillman with a saddle horse and a guide, Paul Schild. Tillman was injured when the horse reared while crossing a boggy area through which the guide Schild had led the hunting party. Tillman sued Allison and its employee, Schild, alleging that their negligence resulted in his injury. Allison admitted that Schild was its employee and that he was acting within the scope of his employment when the accident occurred. Tillman tried the case on the theory that Allison was liable by virtue of its own negligent conduct, and for the negligence of its employee Schild under the doctrine of Respondeat superior. The trial court instructed the jury that any negligence on Schild's part must be imputed to Allison.

The jury's voting pattern is the heart of the matters tendered for our consideration. The trial court provided the jury with a special verdict form consisting of five separate questions. The first question asked whether the employer Allison was "guilty of negligence which was a proximate cause of the accident," and the second question asked whether the employee Schild was "guilty of negligence which was a proximate cause of the accident." Nine jurors answered "no" to the first question. Eight of those nine, and one other juror who did not concur in the response to the first question, answered "no" to the second question. Juror Leorna M. Cushing was among the nine who found that Allison was not "guilty of negligence which was a proximate cause of the accident," but she did not join in the parallel finding concerning Schild. The court entered a "Judgment upon Verdict" for Allison and Schild. Relying in part upon the jury's vote distribution, Tillman moved for a new trial, but the district court denied Tillman's motion.

On appeal, Tillman argues that the jury's verdict was invalid because the nine jurors who absolved Allison were not the same nine who exonerated Schild. Tillman further contends that juror Cushing's vote in favor of Allison is fatally defective because she did not also vote in favor of Allison's employee, Schild.

We first consider whether juror Cushing's failure to absolve the employee Schild of negligence impeaches her vote for Allison. Tillman asserts that Cushing's failure to subscribe to the jury's absolution of Schild means she believed that Schild's negligence approximately caused the accident. Therefore, according to Tillman, she was required to hold Allison liable as well under the trial court's Respondeat superior instruction. However, this argument improperly equates Cushing's failure to exonerate Schild with an affirmative conviction that he was at fault. It is equally possible that Cushing simply formed no opinion respecting Schild's culpability. See Barlow v. International Harvester Co., 95 Idaho 881, 522 P.2d 1102 (1974).

We should ascribe to juror Cushing, if possible, that view of the case which makes her responses to the separate inquiries consistent. Cf. Rohr v. Henderson, 207 Kan. 123, 483 P.2d 1089 (1971) (court should adopt view of case that makes jury's answers to special interrogatories consistent). See also Hasson v. Ford Motor Co., 19 Cal.3d 530, 138 Cal.Rptr. 705, 564 P.2d 857 (1977). Cushing's failure to vote on the issue of Schild's liability can be reconciled with her vote in favor of Allison under the following circumstances. If Cushing did not decide whether Schild's conduct was blameworthy, and if Cushing's vote in the employer Allison's favor derives from and stands for her finding that, with regard to its Own conduct, Allison was not "guilty of negligence which was a proximate cause of the accident," then so characterized, Cushing's voting pattern is internally consistent. Her vote for Allison acquits the employer of causal negligence based upon its own actions but does not address the employer's possible liability under the doctrine of Respondeat superior. The separate vote of the jury in favor of Schild removes the basis for holding Allison vicariously liable. The two findings are not necessarily inconsistent. Barlow v. International Harvester Co., supra.

This brings us to Tillman's second argument. He suggests that the verdict rendered was invalid because the nine jurors (including Cushing) who determined that Allison's own behavior was not causally negligent were different from the nine jurors (excluding Cushing) who found that Schild's conduct was not causally negligent. Tillman has argued that the Idaho Rules of Civil Procedure support his position, citing I.R.C.P. 48(a) and 48(b). However, we find the rules equivocal, and we therefore seek guidance elsewhere.

Judicial decisions from other states are divided. Some courts have held that in order to render a verdict, the Same jurors together comprising the required majority must concur in resolving each issue essential to the ultimate outcome of the controversy. See, e. g., Earl v. Times-Mirror Co., 185 Cal. 165, 196 P. 57 (1921); Baxter v. Tankersley, 416 S.W.2d 737 (Ky.1967); Clark v. Strain, 212 Or. 357, 319 P.2d 940 (1958); Dick v. Heisler, 184 Wis. 77, 198 N.W. 734 (1924). Other courts have allowed a majority consisting of different jurors on different issues to make the determinations involved in disposing of a case. See, e. g., McChristian v. Hooten, 245 Ark. 1045, 436 S.W.2d 844 (1969); Ward v. Weekes, 107 N.J.Super. 351, 258 A.2d 379 (App.Div.1969); Naumburg v. Wagner, 81 N.M. 242, 465 P.2d 521 (App.1970); Fields v. Volkswagen of America, Inc., 555 P.2d 48 (Okl.1976).

The question is basically one of choosing that result which will best carry out the jury trial policy expressed in Art. 1, § 7, Idaho Constitution, as implemented by I.R.C.P 48. ¹ In Naumberg v. Wagner, supra, the court held that "any ten jurors are . . . sufficient to agree on any issue, so long as none of these jurors has voted inconsistently." Id. 465 P.2d at 524. The court believed that its holding "best assures attainment of the purpose of less-than-unanimous verdicts, namely, overcoming minor disagreements that resulted in 'hung' juries under the unanimity requirement." Id.; cf. Ward v. Weekes, 107 N.J.Super. 351, 258 A.2d 379 (App.Div.1969) (contrary rule frustrates objective of preventing mistrials that cause economic loss to public, litigants, attorneys, and witnesses and contribute to court congestion and unfairness resulting from prolonged delay). By contrast, the rule requiring concurrence of the same nucleus of jurors on each material issue seems to be rooted in the notion that a verdict is a "non-fragmentable totality," "a whole and separate entity (that) represents one ultimate finding on the basis of the several issues." 27 Wash. & Lee.L.Rev. 360, 363-64 (1970). This rule is said to promote consistency and fairness. Id. at 371. In our view, consistency and fairness are adequately protected without resorting to such a mechanistic rule that needlessly increases the likelihood of costly mistrials.

The framers of Art. 1, § 7, of the Idaho Constitution, in rejecting the unanimous verdict requirement in favor of a requirement that only three-fourths of a jury in a civil matter be required to return a verdict, were motivated primarily by the practical considerations of the additional expense and delay resulting from failure of juries to agree unanimously, and by the further belief that justice would not be diluted as a result of a three-fourths requirement. One of the convention members who supported the proposed section stated:

"(M)y experience has taught me that justice would be meted out more unerringly, more promptly and in a better manner in civil cases if two-thirds of the jury should decide the issues and render their verdict on that vote." 1 Proceedings & Debates of the Constitutional Convention of Idaho, at 229 (1899) (I. W. Hart, ed. 1912).

Another convention member remarked:

"It is by this system (the unanimous jury verdict requirement) that we have repeated trials, and new trials, because juries often fail to agree. . . . It is the people who have the litigation who are benefited by this change because you get verdicts . . . . I say it is a matter of special interest to the laymen, to the men who have a case in court, to the men who have to pay the costs of litigation . . . ." Id. at 224.

W. H. Claggett, the chairman of the Idaho Constitutional Convention, noted that the passage of Article 1, Section 7 (with the three-fourths requirement) would:

"eliminate that which tends to defeat the ends of justice and leave the trial by jury not as it was, under the old original common law, but something like an approximation to it, by abolishing this absurdity which does not prevail anywhere else, or in any portion of our government, of requiring twelve men to agree unanimously before the litigant can get justice in the courts." Id. at 156.

It is evident that...