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.
98 Idaho 569 | 585 P.2d 1280
At the sentencing hearing a month later, Flummer was present with his attorney, and prior to the actual imposition of sentence, notwithstanding that a possibility of consecutive sentences was not made at the plea-acceptance hearing, consecutive sentences were mentioned by both counsel for Flummer and for the State, Flummer‘s counsel imploring the court not to impose a consecutive term.
It is the conclusion of the Court that, Flummer being present, it cannot be successfully argued that he was not aware of the court‘s discretion to sentence consecutively. At that stage, Flummer‘s choices were to take his chances on the court‘s exercise of discretion, or move the court for leave to withdraw his plea of guilty. Flummer, fully informed as required by Colyer, allowed his guilty plea to stand, and he cannot now be heard to complain.
In Colyer, mention was made of the post-Boykin case of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), where it was established that the defendant was fully informed by his own attorney as to his right. The Supreme Court said:
“At the state court hearing on post-conviction relief, the testimony confirmed that Alford had been fully informed by his attorney as to his rights on a plea of not guilty and as to the consequences of a plea of guilty. Since the record in this case affirmatively indicates that Alford was aware of the consequences of his plea of guilty and of the rights waived by the plea, no issues of substance under Boykin v. Alabama would be presented * *.”
State v. Colyer, 98 Idaho at 35, 557 P.2d at 629 (quoting Alford).
Upon review of the record here, we are not persuaded that Flummer was not aware of the consequences of his guilty plea.
Judgment affirmed.
SHEPARD, C. J., and McFADDEN, DONALDSON and BAKES, JJ., concur.
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
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
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
The framers of
“[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 the founders of the Idaho Constitution recognized that the practical considerations concerning delay, retrials, hung juries, are important considerations in arriving at justice, and that justice is served without prejudicing a fair trial by reducing the requirement of unanimous juries to a three-fourths requirement. In our view, to adopt the argument of appellants and require that the same nucleus
We hold that the special verdict findings in favor of Allison and Schild were not defective merely because the nine jurors who found that Allison was not “guilty of negligence which was a proximate cause of the accident” were different from the nine who so absolved Schild. The record before us does not establish that the jury‘s voting pattern denied Tillman a fair trial, and the trial court therefore did not abuse its discretion in refusing to grant a new trial. Seppi v. Betty, supra. Cf. Hollandsworth v. Cottonwood Elevator Co., 95 Idaho 468, 511 P.2d 285 (1973) (granting or denying new trial is largely within discretion of trial court).
Affirmed. Costs to respondents.
SHEPARD, C. J., and McFADDEN and DONALDSON, JJ., concur.
BISTLINE, Justice, dissenting.
Without doubt the Court possesses the power to promulgate its own rules of procedure. The legislature, in 1941, in enacting what is now
In 1957, by order of the Idaho Supreme Court, the Idaho Rules of Civil Procedure were adopted. Rule 1 stated the scope of the rules is to “govern the procedure” in the various courts of Idaho. The rules were patterned generally after the Federal Rules of Civil Procedure, with changes being made where Idaho substantive law required changes. Such was true with respect to Rule 48, as it then read, which as applicable here stated that “[t]hree-fourths of the jury may render a verdict.”
In 1975 the legislature was somehow induced to repeal
In doing so the Court makes a serious inroad into the area of substantive law and goes beyond the bounds of
Whether the number of jurors who must agree to a verdict be 12, 11, 10, 9, or 8, has nothing at all to do with procedure, but is a substantive matter affecting litigants, not lawyers. Procedure has to do with the rules and regulations which govern the progression of a civil controversy through the courts from the filing of the complaint to a final judgment, and properly deals with the filing of the pleadings, motions, discovery, etc.
There is no need to turn to New Mexico, to New Jersey, or to Arkansas for guidance. The statute, as it was in effect at the time the Constitution was adopted, and for 85 years thereafter, spells out in exact terms precisely what the people of Idaho, through their legislature, considered to be the purpose and intent of the Constitution and of the statute, namely, that a “jury, or three-fourths of them,” may agree upon and render a verdict.
The Oregon Supreme Court unanimously decided the same issue exactly contrary to that which the Idaho Court announces today. The Oregon Constitution, art. VII, § 5.7, as is true of the Idaho Constitution, requires a concurrence of three-fourths of the jury in civil cases. Oregon held: “This means that not less than nine jurors must agree to the verdict and the same nine jurors must agree on all issues determined by the verdict.” Shultz v. Monterey, 232 Or. 421, 375 P.2d 829, 830 (1962). Clark v. Strain, 212 Or. 357, 319 P.2d 940 (1958).
In sum, I cannot agree with the Court for the primary reason that its decision in this case invades the area of substantive law, and, under the guise of the Court‘s rule-making power, purports to interpret its own rule, doing so in a manner which clearly violates a constitutional provision, the effect and meaning of which has been the subject of legislative attention. Courts, because they are the final arbiters, should be especially zealous in upholding the constitution and avoiding usurpation of powers which are those of the people through their legislature.