Watson v. Navistar International Transportation Corp. , 121 Idaho 643 ( 1992 )

BAKES, Chief Justice,

concurring specially:

The Court today could just as easily have concluded on this record that the trial court found that the jurors did “severally” agree to be bound. Clark v. Foster, 87 Idaho 134, 391 P.2d 853 (1964). The record in this case would certainly have supported such a finding. However, I join the Court’s remand to allow the trial court to explicitly so find in order to “assure that [the] jury participate in ‘solemn deliberation’ ... and avoid a verdict that was irrationally skewed by a minority of ‘inveterate juror[s].’ ” Ante at 658, 827 P.2d at 671.

Since this matter is being remanded for the trial court to reconsider its granting of the new trial, I write to point out what I perceive to be an even more serious problem with the jury’s conduct in this case. The affidavits of all the jurors indicate that when they began to deliberate there was a wide variance of opinions among the jurors over whether the defendant International Harvester was even negligent at all. Several of the jurors were of the opinion that International Harvester was not negligent. For some reason, the jury misconstrued the instructions in the special verdict and concluded that those jurors who did not think that there was any negligence on the part of International Harvester should not participate any further in the jury’s deliberations. The special verdict instruction, which followed the questions regarding whether the two defendants were negligent, stated: “If you answered both of the above questions ‘No,’ you will not answer the remaining questions, but will simply sign the verdict.” ¹⁷ The affidavit of Juror Alan Don Hines stated, “Because jurors Dover, Nightingale and Pung voted ‘No’ to the first two questions [regarding International Harvester’s and Dokken’s negligence], it was thought that they should not participate any further in the actual decision-making of the jury.” The affidavit of Diana L. Bull stated, “The jurors understood the Special Verdict to prohibit those jurors that answered both Questions No. 1 and 2 ‘No’ from answering any further questions, and as a result, jurors Nightingale and Pung did not deliberate on or answer Questions 3, 4, 5 and 6; The jury foreman, Dover, did participate as foreman in the further deliberations, but didn’t vote on Questions 3, 4, 5 and 6____” The affidavits of the other jurors indicate the same thing. As a result, the three jurors who initially did not think there was any negligence on the part of the defendants did not participate any further, and when the other jurors agreed to average the jurors’ opinions as to negligence, only the nine jurors who thought there was some negligence on the part of the defendants participated in the averaging.

In civil trials, a party is entitled to a trial by a jury of twelve, not nine. Juries are regularly instructed, and this jury was instructed,¹⁸ that each juror should consider the views of each of the other jurors in arriving at their decision in the case. While admittedly the ultimate verdict can be arrived at by nine of the twelve members of the jury, a party is still entitled to the deliberation of twelve qualified jurors. See McNally v. Walkowski, 85 Nev. 696, 462 P.2d 1016, 1018 (1969) (“A litigant is ... entitled to a jury composed of 12 impartial jurors; although a civil case may be decided by the vote of three-fourths of that number, a party has the right to have that decision, whether for or against him, based on the honest deliberations of 12 such individuals.”); Maddox v. Vieth, 368 S.W.2d 725, 727 (Mo.1963) (“[Ljitigant is entitled to the deliberations of 12 qualified men.”); Andrews v. County of Orange, 130 Cal.App.3d 944, 182 Cal.Rptr. 176, 185 (1982) (“[Pjlaintiffs were entitled to the deliberations of 12 impartial jurors and prejudice must be presumed where they were denied that right.”).

In this case it is clear that International Harvester did not receive the deliberation of twelve jurors. The affidavits are uncontradicted that after the first vote the three jurors who found no negligence on International Harvester’s part were excluded from further participation. Had the percentages of all twelve jurors, including the three excluded jurors who found 0% negligence on the part of International Harvester, been averaged, the total percentage of negligence attributable to the plaintiff would have far exceeded the negligence attributable to the defendants, and the jury’s verdict would have been for the defendants and not for the plaintiffs. Ironically, had those three excluded jurors even found 20% negligence on the part of International Harvester, then under this jury’s interpretation of the instructions in the special verdict those three excluded jurors would have continued to participate further in the jury process, and their 20% negligence for International Harvester, when averaged with the rest of the jurors’ negligence, would still have resulted in the plaintiffs’ negligence exceeding that attributable to International Harvester.

Based on the uncontroverted affidavits, the defendants did not receive the deliberations of a twelve-person jury. I believe that constitutes an independent ground which would justify the trial court’s decision to grant a new trial for juror misconduct under I.R.C.P. 59(a)(1), (2) and (7). See Umphrey v. Sprinkel, 106 Idaho 700, 682 P.2d 1247 (1983) (Courts may consider juror affidavits to clarify what the verdict was); Seppi v. Betty, 99 Idaho 186, 195, 579 P.2d 683, 692 (1978) (“[T]he trial court has broad discretion to order a new trial when it believes that the verdict, whether general or special, is a product of the jury’s misunderstanding.”). The jury in this case certainly misunderstood the directions on the special verdict when they excluded the three jurors from the deliberations merely because they were of the view that there was 0% negligence attributable to International Harvester. The trial court would be justified in granting a new trial in this case for that reason also.

17 . The special verdict reads:

SPECIAL VERDICT

We, the jury, answer the questions submitted to us in the Special Verdict as follows:

QUESTION NO. 1. Was there negligence on the part of the defendant, INTERNATIONAL HARVESTER COMPANY, which was a proximate cause of the accident?

ANSWER: Yes _9_ No 3

QUESTION NO. 2. Was there negligence on the part of the defendant, DOKKEN IMPLEMENT CO., INC., which was a proximate cause of the accident?

ANSWER: Yes 0 No 12

If you answered either of the above questions “Yes,” then please answer Question No. 3.

If you answered both of the above questions “No,” you will not answer the remaining questions, but will simply sign the verdict.

QUESTION NO. 3. Was there negligence on the part of the plaintiff, LARRY W. WATSON, which was a proximate cause of the accident?

ANSWER: Yes 9 No 0

You are now to compare the negligence of the parties. If you answered "No” to Question No. 3, then insert a zero (0) in answer to Question No. 4(c). If you answered the previous question "Yes,” then insert in the answer to Question No. 4, the percentage of negligence you find attributable to each party. Your percentage must total 100%.

QUESTION NO. 4. We find that the parties contributed to the cause of the accident in the following percentages:

(a) The defendant, INTERNATIONAL HARVESTER CO. 58.9%

(b) The defendant, DOKKEN IMPLEMENT CO., INC. 0 %

(c) The plaintiff, LARRY W. WATSON 41.1%

TOTAL 100%

If the percentage of the negligence attributed to the plaintiff is equal to or greater than the percentage of negligence attributed to each defendant, then you will not answer any further questions, but will sign the verdict.

If the percentage of negligence attributed to the plaintiff is less than the percentage of negligence attributed to any defendant, then you will answer Questions No. 5 and 6.

QUESTION NO. 5. What is the total amount of damages sustained by the plaintiff, LARRY W. WATSON, as a result of the accident?

ANSWER: $666,222.22

QUESTION NO. 6. What is the total amount of damages sustained by the plaintiff, SHERRY WATSON, as a result of the accident?

ANSWER: $ 67,222.22

Foreperson

/s/ Eric G. Schwam Juror /s/ Alan G. Hines Juror

/%/ Christopher B. Trail Juror /s/ Cynthia Hochhalter Juror

/s/ Janella M. Robertson Juror /s/ Laura Warnock Juror

/s/ VeElla C. Whitcomb Juror /s/ Wendell Wendt Juror

/s/ Diana Bull Juror Juror

Juror SPECIAL VERDICT

18 . Instruction No. 29 read in part:

The attitude and conduct of jurors at the beginning of their deliberations are important. It is rarely productive for a juror, at the outset, to make an emphatic expression of his or her opinion on the case or to state how he or she intends to vote. When one does that at the beginning, his or her sense of pride may be aroused; and he or she may hesitate to change his or her position, even if shown that it is wrong. Remember that you are not partisans or advocates, but are judges. For you, as for me, there can be no triumph except in the ascertainment and declaration of the truth.

Consult with one another. Consider each other’s views; and deliberate with the objective of reaching an agreement, if you can do so without disturbing your individual judgment. Each of you must decide this case for yourself; but you should do so only after a discussion and consideration of the case with your fellow jurors.