Young v. J.B. Hunt Transp., Inc.

• Decision Date: 19 October 1989
• Docket Number: No. 88-SC-694-DG,88-SC-694-DG
• Citation: 781 S.W.2d 503
• Parties: James M. YOUNG, Appellant, v. J.B. HUNT TRANSPORTATION, INC. and Robert L. Charles, Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 503

781 S.W.2d 503

James M. YOUNG, Appellant, v. J.B. HUNT TRANSPORTATION, INC. and Robert L. Charles Appellees.

No. 88-SC-694-DG.

Supreme Court of Kentucky.

Oct. 19, 1989.

Stephen K. Dallas, Willie Mathis, Jr., Mathis, Dallas & Frohlich, Florence, for appellant.

Lee W. Rowland, George B. Hocker, Clark, Ward & Hopgood, Lexington, Don Ruberg, O'Hara, Ruberg & Taylor, Covington, for appellees.

E. Andre Busald, Busald, Funk, Zevely, P.S.C., Florence, for amicus curiae.

LAMBERT, Justice.

This Court granted discretionary review to consider three significant questions of law relating to civil trial practice in Kentucky. Upon each question presented, the Court of Appeals reversed the trial court. As the issues raised arose out of different phases of the trial and do not depend upon common facts, each will be addressed separately herein.

I.

The first issue before the Court is whether the verdict of the jury was defective for failure of at least nine of the same jurors to concur as to each of the eight "special interrogatories" submitted.

At the conclusion of a lengthy trial arising out of a motor vehicle accident, the court gave comparative negligence instructions. The jury was required to make findings as to whether each driver failed to comply with his duties, the percentage of fault attributable to each, and the total sums of money required to compensate plaintiff. Both drivers were found to have been negligent, fault was apportioned 44% to appellant (plaintiff at trial) and 56% to appellees (defendants at trial), and appellant's total damages were found to be in excess of $932,000. Allowing appellant 56% of the damages found, judgment was entered in his favor for a sum slightly in excess of $522,000.

Appellees timely objected to receipt of the verdict on the grounds that an insufficient number of the same jurors concurred as to the various special interrogatories submitted to the panel. Of the eight special interrogatories submitted, only five of the twelve jurors concurred as to each. As to the three special interrogatories which determined liability (i.e. appellant's negligence, appellees' negligence, and apportionment), only six of the same jurors concurred. However, as to each of the eight special interrogatories, three of which determined liability and five of which determined damages, at least nine jurors concurred. The trial court overruled appellees' objection, accepted the verdict and entered judgment.

Appellees appealed to the Court of Appeals from the judgment of the trial court. Relying on Baxter v. Tankersley, Ky., 416 S.W.2d 737 (1967), the Court of Appeals held there was not a concurrence in the verdict by the required number of jurors and reversed. It said:

In neither case (Baxter nor the case at bar) did the same nine jurors sign both the liability and damage instructions and both are therefore void. There was simply no consensus by any nine jurors.

Parenthetically, the Court observed "if the rule is to be changed, it must be by the Supreme Court."

Prior to reaching the merits of this issue, we take note of appellant's contention that appellees failed to present this question in their prehearing statement filed in the Court of Appeals, and his argument that the Court of Appeals erred in considering and reversing an issue not properly before it. Without undertaking an exhaustive review of the authorities, we observe that CR 73.02(2) vests considerable discretion in appellate courts to determine the appropriate manner to deal with procedural error and that deciding cases on the merits is a primary objective of appellate procedure. See Crossley v. Anheuser-Busch, Inc., Ky., 747 S.W.2d 600 (1988), and Ready v. Jamison, Ky., 705 S.W.2d 479 (1986). Discerning no unfair prejudice to appellant by the Court of Appeals' consideration of this issue and with due regard for that Court's exercise of its sound discretion, we decline to disturb its decision to reach the issue on the merits.

Since rendition of our decision in Baxter v. Tankersley, supra, this court has abandoned contributory negligence as a complete bar to recovery and adopted in its place certain provisions of the Uniform Comparative Fault Act. We have directed submission of special interrogatories to the jury to ascertain its precise findings as to total damages due plaintiff without regard to his fault, and the percentage of total fault attributable to plaintiff and defendant. Hilen v. Hays, Ky., 673 S.W.2d 713 (1984). The use of special interrogatories has been encouraged in negligence cases involving multiple parties. Covington v. Friend Tractor and Motor Company, Inc., Ky.App., 547 S.W.2d 771 (1977). Under present law, the decision-making required of a jury (eight separate findings in this case) is considerably more complex than it was under former law. No longer may the jury simply determine that plaintiff was contributorily negligent and thereby render a verdict. No longer may the In addition to a greater possibility of mistrial, if we retain the rule in Baxter, it would be necessary to give the jury more explicit instructions. In the future, if only nine jurors agreed as to liability, it would be necessary to instruct the three who did not agree that they could not participate in the determination of damages. Since it would be improper to permit persons with no right to participate in a decision to remain with the jury during deliberations, those jurors who did not join in the liability verdict would be required to depart the jury room. Such a rule would be subject to attack, however, as being in violation of KRS 29A.280 which requires twelve jurors for all trials in circuit court. To attempt by instructions to fine-tune the deliberations of the jury would necessarily result in confusion, coercion of reluctant jurors and permit strong-willed jurors to exercise undue influence upon the proceedings. Ward v. Weekes, 107 N.J.Super. 351, 258 A.2d 379 (1969).

jury simply make one or two findings in which it finds the defendant negligent and awards plaintiff a sum of money not to exceed the amount shown in evidence or demanded in the complaint. We now require specific findings on a number of issues and this necessarily leads to greater opportunity for disagreement among members of the jury. If we require agreement of the same nine persons on each of numerous disputed questions of fact, we invite a greater number of mistried cases.

Upon careful consideration of this issue and despite our reluctance to overrule prior case law (see Corbin Motor Lodge v. Combs, Ky., 740 S.W.2d 944 (1987)), we believe a better approach is to treat each special interrogatory submitted to the jury as a separate verdict which may be reached by any nine or more members of the panel. Our examination of Section 248 of the Kentucky Constitution and KRS 29A.280(3) reveals nothing which prohibits such an approach. These provisions refer only to "a verdict" but do not state or imply that only one verdict may be rendered in a particular case.

The view that submission of special interrogatories results in separate verdicts on each issue submitted was accepted in Schabe v. Hampton Bays Union Free School District, 103 A.D.2d 418, 480 N.Y.S.2d 328 (1984), wherein the Court discussed the issue as follows:

The total focus of a general verdict is the outcome of the case, but the focus of a special verdict is the resolution of specific factual questions.

While a general verdict is the 'merger into a single indivisible residuum of all matters, however numerous, whether of law or fact' and is 'incapable of being broken up into its constituent parts,' a special verdict is separated into distinct parts, each of which can be treated as a separate and distinct issue. The Courts have thus been free to set aside unsound portions of special verdicts while saving others. (Citations omitted).

Id. 480 N.Y.S.2d at 334.

In his Kentucky Instructions to Juries, former Justice John S. Palmore criticized this Court's decision in Baxter as follows:

Though only nine of the jurors have determined liability, it does not seem to this writer that there is good reason why the other three should not be able to participate in assessing damages. In fact, if they cannot, then the issue of damages can hardly be said to have been submitted to a 12-man jury. On this basis, the soundness of Baxter v. Tankersley (supra, n. 5) may be open to question. The holdings that the same jurors must concur in the answers to all questions necessary to support a judgment apparently are based on the premise that there is but one "verdict." See Clark v. Strain, Or., 319 P2d 940 (1958), and McCauley v. International Trading Co., 268 Wis. 62, 66 N.W.2d 633, 638 (1954). Actually, however, there is a separate verdict on each separate issue.

2 J. Palmore, Kentucky Instructions to Juries, Sec. 13.20 at 30 n. 243 (2d ed.1989).

Upon review of this question, it does not seem unreasonable or illogical to permit individual members of the jury to conclude that as each special interrogatory is addressed This Court fully recognizes that the position we announce herein is subject to a different view and that a number of courts have so held. Klanseck v. Anderson Sales & Service, Inc., 136 Mich.App. 75, 356 N.W.2d 275, 279 (1984); Ferguson v. Northern States Power Co., 307 Minn. 26, 239 N.W.2d 190 (1976); Plaster v. Akron Union Passenger Depot Co., 101 Oh.App. 27, 137 N.E.2d 624 (1955); Munger v. SIAC, 243 Or. 419, 414 P.2d 328 (1966); McCauley v. Charter Oak Fire Ins. Co., 660 S.W.2d 863 (Tex.1983); and Krueger v. Winters, 37 Wis.2d 204, 155 N.W.2d 1 (1967). It is our belief, however, that in the vast majority of cases, a better verdict will be reached when the entire jury is allowed to participate on all issues. Certainly a thorough consideration of the evidence is more likely if dissenting views as well as concurring views are considered, and the ability of jurors disposed to minimize or exaggerate damages will...