JAMES M. HARBISON v. BRIGGS BROS. PAINT MFG. CO.
Supreme Court of Tennessee
February 8, 1962
354 S. W. 2d 464
Nashville, December Term, 1961
CATE & CATE, GEORGE H. CATE, JR., Nashville, for respondent.
MR. JUSTICE FELTS delivered the opinion of the Court.
This was an action at law in tort for personal injuries. The Trial Judge entered a judgment of dismissal, upon the jury‘s response to a single interrogatory submitted by him to them. The Court of Appeals held this was error, but harmless, and affirmed. We granted plaintiff‘s petition for certiorari, and the case has been heard here.
The action was brought by Harbison against the Paint Company for damages for injuries alleged to have been caused him by its negligence. He averred it sold him a can of liquid “bug killer” to be used in killing fleas in
The negligence charged was that defendant sold him this highly inflammable liquid without warning him of its dangerous nature, and without having put on the can a label indicating that such liquid was dangerously inflammable, in violation of the statutes and of the regulations of the Fire Marshal. Defendant pleaded the general issue of not guilty.
Plaintiff demanded a jury, and the case was tried before the judge and jury, the trial commencing Thursday, November 19, and ending Monday, November 23, 1959. Each side adduced evidence to support his contentions. The pleadings and the evidence presented these sharply contested issues of fact:
(1) Whether or not defendant sold and delivered to plaintiff the can of liquid in controversy; (2) whether or not defendant was guilty of negligence proximately causing plaintiff‘s injuries; (3) whether or not plaintiff was guilty of proximate contributory negligence; and (4) whether or not plaintiff suffered the damages in the sum claimed, or in any sum.
At the close of the evidence, there was no motion for a directed verdict. The Trial Judge did not submit the case to the jury, either generally, or specially upon these litigatеd issues of fact. Instead, over plaintiff‘s objection, His Honor submitted only one interrogatory asking the jury to answer issue (1), telling them if they answered it “No,” in favor of defendant, that would end the case,
THE COURT: Gentlemen of the Jury, the Court in its sound discretion, has decided to submit to you a special issue in this case now on trial in which Jim Harbison is the plaintiff, and Briggs Brothers Paint Company, Incorporated, is the defendant, and in which the plaintiff sues the defendant for $50,000 damages for alleged personal injuries. The special issue which is submitted by the Court, and which I am going to hand you, is as follows:
“Did or did not the plaintiff, on July 9, 1958, receive a can with the words, ‘Bug killer’ on it marked Exhibit 2 to the plaintiff‘s direct examination, containing a liquid product mixed by the defendant Company, its agents or servants, and delivered by its agents and servants.
“Now, at the bottom I have placed these words, ‘We find for the Plaintiff,’ and answer Yes, or ‘We find for the defendant,’ and answer no.
“I charge you further that if you should return a verdict for the plaintiff on this issue—that is, that you find the plaintiff did receive such a can, and so forth, then there will be additional issues to be submitted to you, and which arise from the pleadings in the case. If, on the contrary, you should return a verdict for the defendant, on the issue now submitted to you,—that is, that the plaintiff did not receive such a can, and so forth, then that verdict would be con-
clusive of the case, and the legal effect would be to exonerate the defendant from liability.”
Under these instructions, the jury retired to their deliberations, and after having done so, returned into court and reported that they had found issue (1) in favor of defendant and answered: “No.” The Trial Judge accepted this response on issue (1), with the other issues undetermined, and entered judgment upon it dismissing plaintiff‘s suit.
Plaintiff appealed in error to the Court of Appeals and assigned errors upon this action of the Trial Judge in submitting, not the whole case, but only this one issue with the above instruction, to the jury, and in dismissing his suit upon the jury‘s response to this one issue. He insisted such action was harmful and reversible error because:
(1) Its effect was to upset the freedom and impartiality of the jury, since they had served longer than the regular term of jury service, and were impatient and anxious to be relieved, and when they were told that by finding for defendant they could at once relieve themselves, but if they found for plaintiff they would be further held to consider additional questions to be submitted, this led them to find for defendant as the shortest and easiest way out.
(2) In these circumstances, the partial manner in which this case was submitted to the jury deprived plaintiff of his constitutional right of trial by jury; that is, his right to have a free and impartial jury, under proper instructions by the judge as to the law, determine all the controverted issues of fact in the case.
Plaintiff here contends that while the Court of Appeals properly held that the Trial Judge erred in submitting only the one issue and in giving this instruction to the jury, that Court erred in holding such error was harmless, and should have held that it deprived plaintiff of his constitutional right of trial by jury and was not saved by the harmless error statute.
The right of trial by jury, thе most valuable right in our Bill of Rights, is guaranteed by our Constitution (
That was the right to have a jury trial in civil actions and criminal prosecutions at common law. It did not extend to suits of an equitable nature in a court of chancery, the right to a jury trial in such suits being conferred only by statute (
At the time of the formation of our Constitution, an incident of the right of trial by jury at common law was that the jury, under proper instructions from the judge as to the law, had the right to decide all the issues of fact, to give a general verdict, compounded of law and fact, in favor of one side or the other. The jury also had the right, at their option, to return a special verdict, finding the ultimate facts in issue and leaving their legal consequences to the judge, who entered judgment on the facts found, if they were legally sufficient. The jury, however, could not be required to return a special verdict, or to give answers to interrogatories submitted to them, but were privileged to decline to find other than a general verdict. Thayer‘s Preliminary Treatise on Evidence (1898), 137-175; Morgan, A Brief History of Special Verdicts and Special Interrogatories (1923), 32 Yale
“As matter of history, we know that the jury, on the whole, successfully stood out against these attempts [by judges to compel special verdicts]; and that in most cases their right was acknowledged. But now it is remarkable how judges and legislatures in this country [United States] are unconsciously travelling back towards the old result of controlling the jury, by requiring special verdicts and answers to specific questions. * * * Doubtless the judges at common law have always exercised a limited power of questioning the jury about their verdicts. But the general, common-law right of the jury to refuse to answer such questions and to give a short, general verdict has been acknowledged” (italics ours). Thayer, supra, pp. 218-219.
Professor Morgan says:
“It, therefore, seems safe to assert that at common law the jury almost from the beginning had the right to return a general verdict in all civil cases and in most criminal cases, and that by the close of the eighteenth century it had acquired this right in all criminal cases.” Morgan, supra, p. 591.
Referring to the practice as to answering special interrogatories, Professor Morgan further says:
“The later English cases seem to accept without argument the view that the judge may examine the jury to ascertain the basis of its general verdict but may not without the consent of the parties and the jury charge the jury tо return answers to special questions with the general verdict.
“In the United States the submission of special interrogatories, answers to which are to accompany the general verdict, is generally recognized as proper at common law. The genesis of the practice is found in the custom of the judges, adopted from England, to catechise a jury as to its reasons for an unanticipated verdict. The matter is now usually governed by statutes” (italics ours). Morgan, supra, p. 592.
In this connection, Dean Wicker says:
“Under the present English practice, it is the privilege of the jury to decline to find any other than a general verdict, even though the judge requests them to give a special verdict; and in the absence of consent of the parties and of the jury it is not proper for the trial judge to direct the jury to return answers to special questions with their general verdict. After a general verdict has been returned, the trial judge is not entitled to ask any further questiоns of the jury for the purpose of ascertaining the grounds for the verdict” (citing cases). Wicker, supra, 35 Yale L. J. 297.
Another incident of common law trial by jury is the separation of function by which the jury tries disputed issues of fact; and the judge, matters of law and all other questions (Whirley v. Whiteman, 38 Tenn. 610, 616-617; State ex rel. Myers v. Brown, 209 Tenn. 141, 351 S.W.2d 385, 388). Devices for separating law from fact were demurrer to the evidence (Hopkins v. Nashville C. & St. L. Railroad, 96 Tenn. 409, 453-455, 34 S.W. 1029, 32 L.R.A. 354) and, later, motion for directed verdict (Greenlaw v. Louisville & N. R. R. Co., 114 Tenn. 187, 191, 86 S.W. 1072; Tyrus v. Kansas City, Ft. S. & M. Railroad, 114 Tenn. 579, 593, 86 S.W. 1074); but “there can be no con-
Otherwise stated:
“It is the indisputable right of every litigant, upon seasonable and appropriate request, to have every material issue of fact on which he has introduced material testimony submitted to the consideration of the jury, with proper legal directions in respect of the verdict to be returned, upon the hypothesis that such testimony shall be found to be true” (italics ours). Memphis Street Ry. Co. v. Newman, 108 Tenn. 668 669, 69 S.W. 269.
As stated, the right to trial by jury, guaranteed by our Constitution, is the right as it was at common law—with the right of the jury, at their option, to return a special verdict or a general verdict, but with the privilege to decline to return any but a general verdict, which general verdict is “held to embrace every issue” unless expected to (
We have no case holding that the jury may be required to render a special verdict, though a jury may be instructed to return a special verdict, in the event they cannot agree on a general verdict. Keith v. Clarke, 72 Tenn. 718. In Louisville & N. R. R. Co. v. Frakes, 11 Tenn.App. 593, 641, Presiding Judge Faw said:
“‘the privilege of the jury to decline finding any other than a general verdict’ * * * is, in our opinion, too firmly imbedded in the practice in this State to be disregarded by the trial courts” (11 Tenn.App. 641).
It should be noted there is a difference between a special verdict and spеcial findings in response to interrogatories or issues submitted to the jury. A special verdict is in lieu of a general verdict, and must find all the ultimate facts in issue, in order to form the basis of the judgment to be rendered. But special issues or interrogatories are put to the jury to elicit their answers to accompany their general verdict for the purpose of ascertaining the basis of that verdict and testing its consistency with such answers. 53 Am. Jur., Trial, sections 1063, 1064, 1065; Morgan, supra, 32 Yale L.J. 575, 588, 591; Wicker, supra 3 Yale L.J. 301; Anderson, Special Issues of Fact in Tennessee: A Look Behind the General Verdict, 22 Tenn.L.Rev. 1039, 1047; Tennessee Procedure in Law Cases, Higgins and Crownover, secs. 1515a-1515j.
“There is * * * a manifest difference between a special verdict and the finding of the facts in answer to interrogatories propounded to the jury. A special verdict is in lieu of a general verdict, and its design is to exhibit all the ultimate facts, and leave the legal conclusions entirеly to the court * * * Findings of fact in answer to interrogatories do not dispense with the general verdict * * * A special verdict covers all the issues in the case, while an answer to a special interrogation may respond to but a single inquiry, pertain-
ing merely to one issue, essential to the general verdict.” Morbey v. Chicago N. W. Ry., 116 Iowa 84, 89, 89 N.W. 105, 107 (citing authorities) (italics ours).
So, it is in the light of this background of common law that we must read the statute, above referred to, on which the learned Trial Judge seems to have based his action. That statute originated as section 10346 of the Code of 1932, and is in these words:
“10364. Special issues. The trial judge, in his discretion, especially where the questions for solution are several or involved, may direct and supervise the formulation of special issue or issues of fact for submission to and answer by the jury. The response or responses of the jury shall have the force of other verdicts at law.”
This statute was re-enacted without change as
It is a familiar rule that a statute is to be construed with reference to the common law, and does not change the common law further than it expressly declares or necessarily implies. Snyder v. McEwen, 148 Tenn. 423, 429, 256 S.W. 434; Linder v. Met. Life Ins. Co., 148 Tenn. 236, 243, 244, 255 S.W. 43; Olsen v. Sharpe, 191 Tenn. 503, 507, 235 S.W.2d 11.
Also, this statute, like our harmless error statute, is not to be construed so as to deny the right to a fair and impartial trial by jury as guaranteed by the Constitution. Manning v. State, supra, 155 Tenn. 276, 292 S.W. 451.
It merely provides that the trial judge may direсt and supervise the submission of special issue or issues of fact to the jury and that their response or reponses shall have the force of other verdicts at law; that is, that such special issues or interrogatories, with the jury‘s answers thereto, are to be taken with the general verdict, and a judgment rendered thereon by the judge.
This statute is more or less similar to statutes which have been enacted in the majority of the states of the United States, providing for the submission of special interrogatories to the jury, and their answers thereto to be returned with their general verdict, and that in case of conflict between such answers and the general verdict, the answers control. Such statutes have been held not to infringe the constitutional right of trial by jury. Walker v. New Mexico & S. P. R. Co. (1897), 165 U.S. 593, 595-598, 17 S.Ct. 421, 4 L.Ed. 837, 842. For a discussion of such statutes, see Wicker, supra, 35 Yale L.J. 296-301; see also,
The view above expressed as to the construction of this statute (
““We are of the opinion that the Code section just quoted does not change the rule [of the common law right of the jury to return a general verdict with its responses to the special interrogatories], and that notwithstanding the responding of the jury to special issues, they should be advised by the court of their right to return along with the special answers their conclusions generally, that is, that they find for the plaintiff or for the defendant, and the court may still accept and act upon the general verdict of the jury, provided there be nothing inconsistent therewith in the special findings.’ Sec. 1515e, p. 580” (41 Tenn. App. 331, 293 S.W.2d 585) (italics ours).
Under such statutes as those above referred to in other states, the great weight of authority is that it is error for the judge to inform the jury of the effect thеir answers may have upon the case because such information would almost necessarily defeat the object to be secured by the answers to such interrogatories. Wicker, supra, 35 Yale L.J. 302-303. In Coats v. Town of Stanton, 90 Wis. 130, 136, 62 N.W. 619, 621, the court said:
“The jury had no right to be informed how any particular answer to a special question would affect the case, or what judgment would follow in consequence of it, for to impart such information would almost necessarily defeat the object intended to be secured by a special verdict, or answers to particular questions in connection with a general verdict. The object of the law is to secure fair and impartial answers to such questions, free from bias or prejudice in favor of
either party or in favor of or against a particular result, and to guard against the danger of the result being affected or controlled by favor or sympathy, or by immaterial considerations.”
So, we agree with the Court of Appeals that the learned Trial Judge erred in this case. The plaintiff had a constitutional right to have every issue of fact made by the pleadings and the evidence submitted to the jury, with proper instructions by the judge, “upon the hypothesis that such testimony shall be found to be true.” (Memphis Street Ry. Co. v. Newman, supra, 108 Tenn. 666, 669, 69 S.W. 269). Tyrus v. Railroad, supra, 114 Tenn. 594, 86 S. W. 1074; Morgan v. Tennessee Cent. Ry. Co., 31 Tenn. App. 409, 422, 216 S.W.2d 32, 37.
But we cannot agree with the Court of Appeals that the error of the Trial Judge was harmless. It immediately touched the constitutional right of plaintiff, and cannot be saved by the harmless error statute. Dykes v. State, 201 Tenn. 65, 68-69, 296 S.W.2d 861, and cases there cited; Tenn. Gas Trans. Co. v. Vineyard, 191 Tenn. 331, 333, 232 S.W.2d 403, 20 A.L.R.2d 279; McClard v. Reid, 190 Tenn. 337, 342-345, 229 S.W.2d 505.
It is urged for defendant, respondent here, that the Trial Judge‘s error did not harm plaintiff, because the jury‘s answer to issue (1) was determinative of the whole case—that the finding that defendant did not supply the can in controversy to plaintiff disposed of the case and necessarily rendered all the other issues immaterial.
Here, the fallacy is that the answer to issue (1) is not dеterminative of the case; it may be determinative
Another fallacy is that this reasoning overlooks the fact that plaintiff had a constitutional right to have all the issues of fact submitted to the same jury at the same time; and that this answer is the direct result of the violation of plaintiff‘s constitutional right of trial by jury.
The record shows that this was the last case heard by this jury. The jury had completed their regular term of service on Friday, November 20th, and, expecting to be released on Friday, they had made arrangements to go back to their jobs or their businesses on Monday following, and so expressed themselves in court, but were, nevertheless, held over to further consideration of the case Monday.
In these circumstances, the case was submitted to the jury on issue (1) and they were told that a finding for defendant would end the case, but a finding for plaintiff would require them to be further held to consider additional issues to be submitted. Human nature being what it is, such a situation would naturally give defendant an unfair advantage. It tended to subject the jury to the temptation of a conflict of their interest with their duty, and to destroy the fairness and impartiality to which both parties were entitled.
Of course, nothing above said in this opinion is intended in anywise to reflect upon the learned Trial Judge, who
For these reasons, the judgments of the Court of Appeals and the Circuit Court are reversed, the answer of the jury on issue (1), is set aside, and the case is remanded for a new triаl. Costs of the appeal in error are adjudged against defendant-respondent.
PREWITT, CHIEF JUSTICE, and WHITE and DYER, JUSTICES, concur.
BURNETT, JUSTICE, dissents.
BURNETT, JUSTICE, (dissenting).
I cannot agree to the majority opinion herein.
This suit originated in the Circuit Court wherein Harbison sued Briggs Brothers for damages for personal injuries, alleging that on July 9, 1958, he purchased two gallons of liquid bug killer from Briggs Brothers which he applied in the basement of a residence to kill an infestation of fleas, and that after it was applied the substance suddenly exploded or burst into flame and severely burned him. He predicated his charge of negligence on the ground that defendant sold him a highly inflammable substance without warning him of the danger of its use, and violated certain State statutes and regulations as promulgated by the Fire Marshal of the State in that the defendant failed to label the containers, in which the substance was allegedly purchased and delivered to him, so as to indicate the inflammable nature of the liquid substance contained therein.
After all the evidence was introduced, both by plaintiff and by defendant, the trial judge on his own motion sub-
“Where an issue has been submitted to a jury which is determinative of a lawsuit, and this issue has been passed on by the jury, will the case be reversed because other issues, subordinate in order of consideration, and immaterial in view of the disposition made of the controlling issue, were not submitted? We think the question answers itself in the negative.”
We fully agree with this conclusion. We granted certiorari because members of this Court disagreed in the conclusion of the Court of Appeals as to whether or not the error was harmless.
At the conclusion of the case, after both parties had rested, the trial judge on his own motion informed the parties that he had concluded upon the allegations of the declaration and the proof offered that the case could be simplified by submitting an issue to the jury which he had framed. The issue he submitted to the jury was:
“Gentlemen of the Jury, the Court in its sound discretion, has decided to submit to you a special issue in this case now on trial in which Jim Harbison is the plaintiff, and Briggs Brothers Paint Company, Incorporated, is the defendant, and in which the plaintiff sues the defendant for $50,000.00 damages for alleged personal injuries. The special issue which is submitted by the Court, and which I am going to hand you, is as follows:
“Did or did not the plaintiff, on July 9, 1958, receive a can with the words, ‘Bug Killer’ on it marked Exhibit 2 to the plaintiff‘s direct examination, containing a liquid product mixed by the defendant company, its agent or servants, and delivered by its agents and servants.
“Now, at the bottom I have placed these words, ‘We find for the Plaintiff‘, and answer Yes, or, ‘We find for the Defendant‘, and answer No.
“I charge you further that if you should return a verdict for the plaintiff on this issue—that is, that you find the plaintiff did receive such a can, and so forth, then there will be additional issues to be submitted to you, and which arisе from the pleadings in the case. If, on the contrary, you should return a verdict for the defendant, on the issue now submitted to you,—that is, that the plaintiff did not receive a can, and so forth, then that verdict would be conclusive of the case, and the legal effect would be to exonerate the defendant from liability.”
In order to see why the trial judge submitted the issue above quoted it is necessary for us to briefly review
The defendants, Briggs, several of his officers and the man who took the order which was sent to Mr. Harbison, all testify positively that they did not deliver any such can to Mr. Harbison. They introduced and showed the labels that were on their products which are Briggs Brothers’ products, and they testify positively that they
Thus the reason plainly appears why the trial judge concluded, as he did, and submitted the special issue that he did to the jury, because from this proof the issue was disputed as to whether or not the сan did or did not come from Briggs Brothers. The undisputed proof on the part of the plaintiff and positive swearing is that the stuff which he complains was faulty was in this specific can, so thus the only issue on that part was, if this was the can and if this can came from somebody else, thus Briggs Brothers would not be liable, because there is nothing whatsoever in the proof that the stuff that injured him came from any other can than this as introduced. This made a determinative issue which was necessary for a jury to consider before arriving at other factual issues in the case, and thus it was that the trial judge concluded that this issue would be determinative of the matter.
We frankly under our practice agree, as all of our cases hold, that every material issue of fact in a lawsuit should be submitted to a jury. Of course, the obvious reason for this is to prevent the trial judge from passing on disputed issues of fact when this is the problеm for the jury, and by submitting special issues certain issues
The Supreme Court of the United States in Gasoline Products v. Champlin Refining Co., post, speaking through Mr. Justice Stone, a great lawyer, a great teacher of law and a great Justice of the Supreme Court of the United States, in commenting on the application of this common law rule in reference to whеther or not in the United States Constitution giving the right of trial by jury was so binding as to make it erroneous not to submit all the issues to the jury at once, had this to say:
“But we are not now concerned with the form of the ancient rule. It is the Constitution which we are to interpret; and the Constitution is concerned, not with form, but with substance. All of vital significance in trial by jury is that issues of fact be submitted for determination with such instructions and guidance by the court as will afford opportunity for that consideration by the jury which was secured by the rules governing trials at common law.” (Emphasis ours).
We cite hereinafter many cases and illustrations of the applicability of our Constitution with reference to
It has long been the rule, both by duty of the appellate courts as well as by statute, that if errors are not prejudicial the case will not be reversed, and it must appear affirmatively that the result of the trial has been affected thereby for a reversal. For more than a hundred years there has been a statute on the statute books of this State, which says (
“No judgment, decision, or decree of the inferior court shall be reversed in the appellate courts, unless for errors which affect the merits of the judgment, decision or decree complained of.”
It plainly appears from reading this record that there is no such error herein as to cause a reversal of this case. The Court of Appeals makes this very apt statement:
“Plaintiff in error also argues in support of the contention that error was prejudicial, that if all of the issues had been submitted the result would likely have been different; that more time would have been spent in argument and the jury might have considered other issues and arrived at a different result.
“We cannot follow this contention. In the first place, the argument was limited to fifteen minutes by
stipulation of counsel agreed to by the court. In the second place, the issue submitted to the jury by the trial judge would have been the first issue the jury would have had to pass on, all other issues being subordinate thereto, and we must assume indulging the presumption of regularity, that the jury‘s action in regard thereto would have been the same in that event. In order to accept plaintiff in error‘s argument we would have to assume the jury would have allowed its consideration of the first issue, the origin of the inflammable substance, to be confused or its discrimination with respect to the evidence in regard thereto to be blunted by reason of other issues such as negligence, contributory negligence and the nature and extent of the injuries and their value at law. This, we cannot do.”
Obviously from what has been said above the question for determination in this lawsuit is whether or not under the procedure as had herein this constitutes a violation of
This right of trial by jury, which is preserved in the Constitution, is said to be the right that was in force and use according to the course of the common law. Under the ancient common law doctrine, it was the practice that the whole of a case had to be submitted to a jury and it could not be divided in any of its particulars, either by the trial court or any appellate cоurt. If there was error in one particular it was necessary for the appellate court to reverse the whole case and
What is a “jury trial” under our Constitution, the United States Constitution, and most constitutions, has been well said by Mr. Justice Gray in Capital Traction Co. v. Hof, 174 U.S. 1, 13, 43 L.Ed. 873, 19 S.Ct. 580, 583, 585:
“‘Trial by jury,’ in the primary and usual sense of the term at common law and in the American constitutions, is not merely a trial by a jury of 12 men before an officer vested with authority to cause them to be summoned and impaneled, to administer oaths to
them and to the constable in charge, and to enter judgment and issue execution on their verdict; but it is a trial by jury of 12 men in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the fаcts, and (except on acquittal of a criminal charge) to set aside their verdict if in his opinion it is against the law or the evidence. This proposition has been so generally admitted, and so seldom contested, that there has been little occasion for its distinct assertion. Yet there are unequivocal statements of it to be found in the books.”
The substance of this doctrine has been recognized by the appellate courts of this State for over a century. A particularly apt commentary thereon and an excellent statement was made a hundred years ago by Judge McKinney in Whirley v. Whiteman, 38 Tenn. 610, at page 616. In that opinion this Court at that time, a hundred years ago, expressed recognition of the practice of requiring a special verdict upon facts in order that the court may make an application of law. The Court likewise recognized then when it appears that there is no conflict in the evidence the facts are all admitted, and would not be submitted to a jury. If the Court may apply the law upon a special verdict settling controverted facts, why may not the court make application of law upon facts which are undisputed, that are all admitted by the evidence? Of course, we don‘t have that exact thing here, but we have the determinative issue submitted to a jury. If the determinative issue is submitted to them and they pass on it, why submit incidental facts?
It has long been well established in this State that trial by jury is for the benefit of the parties litigant and that
It has long been the well established practice of this State, supported by numerous authorities, that the right of each party to have the assistance and protection of the presiding judge, wherein he has the power to set aside the verdict for good cause, is a part of the litigant‘s right to a trial by jury, which is secured by the constitutional provision above. These statutes requiring litigants to demand a jury, if one is desired, at a particular stage of the litigation, describing the manner, etc., have been held constitutional time and time again, because the right of trial by jury in all jury cases is secured to everyone who does not waive it by the failure to demand it as required. Garrison v. Hollins, Burton & Co., 70 Tenn. 684, and many others which can be found by Shepardizing this one case.
This right of trial by jury sanctioned by the above mentioned constitutional provision is a right to trial by jury as it existed and was in force and use according to the course of the common law under the laws and Constitution of North Carolina at the time of the formation and adoption of our Constitution in 1796. Garner v. State, 13 Tenn. 160. “This places our trial by jury in identity with that of North Carolina in force and use there in the year 1789; * *” Garner v. State, supra, page 176.
A fair survey of the cases as reported by this Court in our appellate courts brings us to the conclusion that a statement made in Simmons v. Fish, 210 Mass. 563, 97 N.E. 102, applies to the application of the principle herein discussed. The Massachusetts court said this:
“* * * It has exercised the power in a great variety of cases touching divers kinds of issues involved in general verdicts. The guiding principle is that, although a verdict ought not to stand which is tainted with illegality, there ought to be but one fair trial upon any issue, and that parties ought not to be compelled to try anew a question once disposed of by a decision against which no illegality can be shown. Thus the parties and the commonwealth have been saved the expense, annoyance and delay of a retrial of issues once settled by a trial as to which no reversible error appears. * * If it is convinced upоn a review of the whole case that the jury has settled the issue of lia
bility fairly and upon sufficient evidence, so that dissociated from other questions it ought to stand as the final adjudication of the rights of the parties, * * *.”
From what has been said above it is obvious that because there is a division in the verdict where a portion of it has gone to a jury that this does not make the trial unconstitutional where it is sent back for a trial upon another portion thereof. As said above a majority of the courts in the country hold this way. Among those listed as holding that there may be a division under this constitutional limitation is the North Carolina case of Burnett v. Roanoke Mills Co., 152 N.C. 35, 67 S.E. 30, wherein the Supreme Court of North Carolina held that there might be such a division without violating this constitutional provision of the North Carolina Constitution. We have cited authority from our own Court above that we are bound under our decisions to that of North Carolinа because of our connection therewith. Thus it is for these reasons and many others I feel without question that from the way the matter was handled herein there has been no constitutional violation as the petitioner claimed, and that the whole matter should not be again retried by a jury.
In other words, what I have been trying to say is that there is no such violation of a constitutional right of petitioner to the extent whereby our harmless error statute would not be applicable as it was applied by the Court of Appeals (
If the theory that a verdict of a jury is in all cases indivisible is correct then the books are full of cases where there has been a general, not a partial, new trial and they were to that extent wrongly decided. In the
If it should be established as a rule in this State that the judgment below must at all times be dealt with as an entirety, it would be establishing a purely arbitrary rule and when carried to an extreme would result in many absurdities. Common sense and reason dictate clearly to the contrary.
We, of course, come down to the application of the harmless error statute (
Clearly, under the facts of the present case, the writer feels that the Court of Appeals properly applied this rule of reason. This Court more than fifty years ago settled the proposition here raised in the present suit when it applied its inherent jurisdiction under a much stronger, using the word “stronger” in favor of the petitioner, case than we have here. The case we are talking about is the case of Greenlaw v. Louisville & N. Railroad, 114 Tenn. 187, 86 S.W. 1072. In this case the trial court had directed a verdict because of contributory negligence. The Court in the opinion goes on to show that this was clearly error and that it should have been submitted to the jury as it cоnstituted a jury question, and the court had no right to comment on the facts or assume one state of facts, and that all the facts should have been submitted to the jury (that is the argument in the present case), but the Court then said conceding this to be error, “We are of opinion, therefore, that the merits of the case have been reached, and that there is no reversible error in the action of the court below, and the judgment of the court below is affirmed, with costs.”
In one breath the majority opinion concedes (citing authority) that statutes giving the jury the right to render divisible verdicts are constitutional, while in the next breath it is held that such an act herein (a divisible verdict) is unconstitutional and thus the harmless error statute cannot apply. It is for this reason that this dissent is filed.