Watson v. Navistar Intern. Transp. Corp., Nos. 16850

• Court: United States State Supreme Court of Idaho
• Writing for the Court: BOYLE; BAKES; BAKES
• Citation: 827 P.2d 656,121 Idaho 643
• Parties: Larry W. WATSON and Sherry Watson, husband and wife, Plaintiffs-Appellants, Cross-Respondents, v. NAVISTAR INTERNATIONAL TRANSPORTATION CORP., formerly known as International Harvester, Co., a Delaware corporation, Defendant-Respondent, Cross-Appellant, and Dokken Implement Company, an Idaho corporation, Defendant. Larry W. WATSON and Sherry Watson, husband and wife, Plaintiffs-Respondents, v. NAVISTAR INTERNATIONAL TRANSPORTATION CORP., formerly known as International Harvester, Co., a Delaware corporation, Defendant, and Dokken Implement Company, an Idaho corporation, Defendant-Appellant. Moscow, October 1990 Term
• Decision Date: 21 February 1992
• Docket Number: Nos. 16850,17032

Page 656

827 P.2d 656 121 Idaho 643 Larry W. WATSON and Sherry Watson, husband and wife, Plaintiffs-Appellants, Cross-Respondents,
v.
NAVISTAR INTERNATIONAL TRANSPORTATION CORP., formerly known as International Harvester, Co., a Delaware corporation, Defendant-Respondent, Cross-Appellant,
and Dokken Implement Company, an Idaho corporation, Defendant.
Larry W. WATSON and Sherry Watson, husband and wife, Plaintiffs-Respondents,
v.
NAVISTAR INTERNATIONAL TRANSPORTATION CORP., formerly known as International Harvester, Co., a Delaware corporation, Defendant,
and Dokken Implement Company, an Idaho corporation, Defendant-Appellant. Nos. 16850, 17032. Supreme Court of Idaho, Moscow, October 1990 Term.
Feb. 21, 1992.
Rehearing Denied April 6, 1992.

[121 Idaho 647] Aherin & Rice, P.A., Lewiston, for appellant Watson. Darrell W. Aherin and Harry M. Philo argued.

Clements, Brown & McNichols, Lewiston, for respondent, Intern. Harvester. Michael E. McNichols argued.

Ware, O'Connell & Creason, Lewiston, for appellant Dokken. Theodore O. Creason and Christopher J. Moore argued.

BOYLE, Justice.

In this products liability action we are called upon to review several issues including whether a new trial is required upon a showing that the jury rendered a verdict that was based on averaging. Because we hold that the district court did not consider all of the necessary factors and standards when determining whether the jury reached an impermissible quotient verdict, we vacate the order granting a new trial and remand for further consideration. In addition, we affirm the district court's order denying the defendant's motion for a new trial on other grounds and affirm the denial of defendant's motion for judgment notwithstanding the verdict. Finally, we affirm the district court's order including Dokken Implement Company as a party in a new trial, if a new trial is ultimately [121 Idaho 648] determined by the district court to be necessary.

I.

Larry Watson was employed as a farm worker by George Brammer, who had purchased an International Harvester combine for grass seed harvesting from Dokken Implement Company (Dokken), a retail farm implement dealer. Dokken had purchased the combine from defendant International Harvester Company (International Harvester) ¹ for resale.

While harvesting grass seed with the International Harvester combine the seed would often "bridge" in the grain tank stopping the flow of seed while it was being unloaded to a truck. In order to break the "bridge" and allow the grass seed to drop into the auger at the bottom of the tank, the combine operator would often get into the grain tank and thrust a pole down through the grass seed. On July 26, 1980, Watson, was severely injured when he attempted to unbridge or unplug grass seed in what appeared to be a grain tank that was three-quarters full. When the bridged seed gave way, Watson slipped and his right foot went into a four-inch opening in the auger cover guard at the bottom of the grain tank. His foot, which was severely mangled by the auger, was later surgically amputated below the knee.

Watson brought this action alleging negligence in the design, manufacture, sale and set-up of the combine. Specifically, Watson claimed that neither the manufacturer nor the dealer provided any instructions on the safe method of unbridging or unclogging grass seed and that the warnings concerning the augers were inadequate.

A jury trial was conducted in February, 1986, at which time the jury returned a special verdict assessing damages for Larry Watson at $666,222.22 and $67,222.22 for his wife, Sherry Watson. The jury found Larry Watson 41.1% negligent, International Harvester 58.9% negligent and Dokken 0% negligent. Nine of the twelve jurors signed the verdict form.

After trial, counsel for International Harvester interviewed the jurors and based upon information it discovered during those conversations a motion for new trial and supporting affidavits were filed on February 18, 1986. The new trial motion was based in part on alleged juror misconduct and was supported by affidavits from five of the jurors and an alternate juror. International Harvester asserted that three jurors who had decided that it was not negligent were excluded from further discussions and that the remaining nine jurors agreed to be bound by an average of their respective assessments of the percentages of negligence apportionable to the parties as well as to the amount of damages.

Watson filed a motion to strike the affidavits, and alternatively for an extension of time to submit opposing affidavits. Watson also filed a notice of intent to examine jurors. The trial court scheduled a hearing and indicated its intent to question the jurors. However, International Harvester petitioned this Court for a writ of prohibition to prevent the questioning of the jurors. After we issued an order and alternative writ of prohibition requiring the district court to show cause why it should not refrain from examining the jurors, Watson withdrew his motion to examine the jurors.

After hearing oral argument on the motions, on November 24, 1986, the district court granted International Harvester's motion for a new trial based on the conduct of the jury in reaching its verdict, but denied Harvester's motion for judgment notwithstanding the verdict. An order granting a new trial was entered on January 13, 1987.

On January 22, 1987, Watson filed a motion for reconsideration and shortly thereafter on February 4, 1987, filed a second set of ten "explanatory" juror affidavits in support of his motion. The district court denied the motion for reconsideration and [121 Idaho 649] ruled that the second set of juror affidavits were untimely filed and should have been submitted within the time allowed under I.R.C.P. 59(c). In its decision and order, the district court also found that Watson's motion failed to meet the requirements of I.R.C.P. 59(e) or 60(b) and that the second set of juror affidavits could not be considered. In addition, the district court held that the new trial order would apply to all parties and issues, including defendant Dokken.

Watson appeals the district court's order for a new trial and its failure to consider the second set of affidavits in support of the motion to reconsider. International Harvester cross-appeals the district court's denial of a new trial based upon evidentiary rulings regarding the admission of subsequent remedial measures, denial of its motion for mistrial, erroneous jury instructions, denial of its motion for judgment notwithstanding the verdict and other alleged irregularities. Dokken appeals the district court's decision to include it in the new trial order.

II.

A.

Watson argues on appeal that International Harvester waived any right to question or challenge the verdict by not objecting at the time the jury was polled. We disagree. When the special verdict was returned the trial judge stated on the record that "it doesn't appear that we have a jury that filled out this form in an orthodox manner." Instead of answering each interrogatory yes or no, the jury had written in each blank the number of jurors voting yes or no. The trial judge gave the parties an opportunity to object to the verdict form and to request that the jury deliberate further. After it was determined that the same nine jurors voted on each question on the special verdict form, ² the jury was polled. The record indicates that the trial court then gave the parties an additional opportunity to comment or object to the verdict. All parties declined.

Watson cites several cases for the proposition that failure to object to the form of a verdict at the time of its submission or reception constitutes a waiver of that right. See Pacheco v. Safeco Ins. Co. of Am., 116 Idaho 794, 780 P.2d 116 (1989); Barlow v. International Harvester Co., 95 Idaho 881, 522 P.2d 1102 (1974); Judd v. Oregon Short Line R. Co., 55 Idaho 461, 44 P.2d 291 (1935); Pedersen v. Moore, 32 Idaho 420, 184 P. 475 (1919). However, Watson's reliance on these cases is misplaced. The fact that a party does not object to the form of a verdict, does not preclude that same party from subsequently raising the question of jury misconduct on a motion for new trial.

In Pacheco v. Safeco Ins. Co. of Am., 116 Idaho 794, 780 P.2d 116 (1989), counsel knew of the alleged misconduct on the part of a juror before the verdict was returned. We held in Pacheco that when the complaining party or his counsel knew of the alleged jury misconduct before the verdict is returned, but nevertheless kept silent, any right to claim misconduct is waived. 116 Idaho at 801, 780 P.2d at 123. The facts of the instant case are readily distinguishable from Pacheco. Here, the jurors returned a special verdict with figures down to the pennies written in the blanks provided for the amount of damages and the percentage of negligence was set forth in decimal points. Although these figures suggested to the parties and to the district judge that the jury determined negligence and damages by averaging, there is nothing on the face of the special verdict form itself or the manner in which the verdict was returned which indicates that the verdict was determined by an improper [121 Idaho 650] antecedent agreement to be bound which is necessary for a showing of an impermissible quotient verdict.

Moreover, the Idaho Rules of Civil Procedure recognize that a party has no way of knowing whether a verdict was an impermissible quotient verdict until some of the jurors are interviewed. Idaho Rule of Civil Procedure 59(b) allows fourteen days from the entry of judgment to present a motion for new trial and I.R.C.P. 59(a) requires that affidavits be submitted in support of a motion for new trial when alleging jury misconduct. The fact that a party suspects at the time the jury returns its verdict that the verdict may have been a quotient verdict is not sufficient to constitute...