H.E. Butt Grocery Company, Petitioner
Vinnie Bilotto, Respondent
Justice Gonzalez, concurring.
I agree with the Court that the charge in this case is permissible because it only incidentally informed the jury of the effect of its answers. However, I think it is time to reconsider whether it makes sense to try to keep juries in the dark about the effect of their answers in these cases. When we moved from special issue practice to broad-form submissions, we dramatically reduced the number of cases in which the jury might not know for sure the effect of its answers. In the few remaining cases in which the jury might not know the legal effect of its answers, I question whether it serves the cause of justice to continue blindfolding the jury. I would join the growing number of states that allow the jury to know the legal effect of its answers.
Rule 277 currently directs that a court "shall not . . . advise the jury of the effect of their answers," but an otherwise proper charge that incidentally advises the jury is not erroneous. Tex. R. Civ. P. 277. Undoubtedly, the charge in this case told the jury the effect of its answers to the comparative negligence questions. It follows the recommendations of the Texas Pattern Jury Charges and instructs the jury to assess damages only if it finds the plaintiff's negligence was fifty percent or less. Our Court long ago held that a similarly-structured contributory negligence charge contravened the common-law rule in Texas against informing the jury about the effect of its answers. See Grasso v. Cannon Ball Motor Freight Lines, 81 S.W.2d 482, 487 (Tex. 1935) (holding that charge which conditioned the damage issue on the jury's answers to contributory negligence issues was a general charge and erroneous because it told the jury what findings were necessary to allow recovery). Both the majority and dissenting opinions recognize that the charge in this case advised the jury about the effect of its answers. The majority opinion holds that such advice was only incidental to a proper charge; the dissenting opinion thinks it was direct. While I agree with the majority opinion, I am concerned that we have not articulated a clear standard so that the bench and bar in future cases can distinguish a charge that directly tells the jury the effect of its answers from one that only incidentally does so. Because such a standard is probably impossible and does not serve the search for justice and truth, we should reexamine whether trying to keep the jury from knowing the legal effect of its charge answers is a worthwhile objective. I conclude it is not, and call for an amendment to Rule 277.
In Texas, the doctrine that jurors should not be informed about the effect of their answers developed in tandem with special issue practice. See generally James G. Denton, Informing a Jury of the Legal Effect of its Answers , 2 St. Mary's L.J. 1 (1970). As Justice Denton put it in 1970: "The concept that the jury should not be informed of the legal effect of its answers is one that is peculiar to those jurisdictions that utilize special issues or special interrogatories." Id. at 1. Prior to 1913, courts had discretion to submit a case by special issues or by general verdict. Id. at 4; s ee Mitchell v. Western Union Tel. Co. , 33 S.W. 1016, 1020 (Tex. Civ. App.--Austin), writ ref'd , 35 S.W. 4, 6 (Tex. 1896). However, in 1913, the Legislature enacted a statute which required submission by special issue upon the request of any party. Act of March 29, 1913, 33 rd Leg., R.S., ch. 59, § 1, 1913 Tex. Laws 113 (repealed) (successor rule at Tex. R. Civ. P. 277).
Our Court adopted the rule against informing the jury as necessary to effectuate the legislative intent behind the special issue statute. In the opinion of McFaddin v. Hebert , 15 S.W.2d 213 (Tex. 1935), which our Court adopted, the commission of appeals concluded that the special issue statute would be meaningless if the jury could be told the effect of its answers. Id. at 216-17. Thus began a long line of cases upholding the rule that juries may not be informed of the effect of their answers. See, e.g. , Gulf Coast State Bank v. Emenhiser , 562 S.W.2d 449, 453 (Tex. 1978); Pittsburg Coca-Cola Bottling Works v. Ponder , 443 S.W.2d 546, 551 (Tex. 1969); Grasso, 81 S.W.2d at 487. Ultimately, in 1973, our Court incorporated the common-law rule against informing the jury into the Civil Rules. Tex. R. Civ. P. 277 (1973); Order of Supreme Court of Texas, Adopting Amendments to Rules of Civil Procedure, 493-494 S.W.2d (Texas Cases) XXXI, XXXII-XXXIII (May 25, 1973).
Almost from the beginning, courts recognized the futility of keeping juries from knowing the impact of their answers in most cases. One court noted that jurors of ordinary intelligence probably know more about the effect of their answers than lawyers realize, but upheld the rule because "the line must be drawn somewhere." Continental Oil Co. v. Barnes , 97 S.W.2d 494, 497 (Tex. Civ. App.--Fort Worth 1936, writ ref'd). Our Court recognized that a strict rule against telling the jury the effect of its answers ignores reality in most cases. It accordingly limited the rule to the cases in which the effect of answers is not obvious:
The spirit of our practice of submitting cases on special issues would be violated if
jurors were informed either by the court or by counsel of the effect of their answers,
but where the effect is so obvious that any juror with ordinary intelligence would
know its effect, neither the letter nor the spirit of the rule is violated by a charge
which assumes such knowledge.
Grieger v. Vega , 271 S.W.2d 85, 87 (Tex. 1954).
By the 1970s, special issue practice had gotten out of hand. The fragmentation of special issues plagued Texas practice with "conflicts, confusion, delays, waste of trial and appellate time, reversals, metaphysics, and the unique system that had developed for trial of personal injury suits." Jack Pope & William G. Lowerre, The State of the Special Verdict--1979 , 11 St. Mary's L.J. 1, 1-2 (1979). In 1973 and again in 1987, we amended Rule 277 to make broad form the predominant way of submitting a case. Order of Supreme Court of Texas, Adopting Amendments to Rules of Civil Procedure, 493-494 S.W.2d (Texas Cases) XXXI, XXXII-XXXIII (May 25, 1973); Order of Supreme Court of Texas, Adopting Amendments to Rules of Civil Procedure, 725-726 S.W.2d (Texas Cases) XXXIII, LIX-LX (March 10, 1987). Broad form is not quite the same as a general verdict, in that the jury is not told to find generally for one or more of the parties. A submission in broad form typically combines several elements of a ground of recovery or defense into a single question. William Kilgarlin, George (Tex) Quesada & Robin Russell, Practicing Law in the "New Age": The 1988 Amendments to the Texas Rules of Civil Procedure , 19 Tex. Tech. L. Rev. 881, 913 (1988). One of the purposes of using broad form is make "questions easier for the jury to comprehend and answer." Texas Dep't of Human Servs. v. E.B. , 802 S.W.2d 647, 649 (Tex. 1990). Logically, a jury can more easily figure out the effect of its answers if the submission is broad form rather than granulated issues.
It is doubtful that the rule against telling the jury the effect of its answers was ever very effective. Even in the days of voluminous granulated issues, juries were not fact-finding machines unburdened by knowledge of the effect of their answers. The advent of broad form submission has reduced to a handful the issues in which the application of the law to fact-findings is so intricate that the jury cannot readily figure it out. Moreover, juries determined to disregard instructions and tailor their answers to their own sense of justice will cause mischief whether they fully understand the effect of their answers or not. Blindfolding such a jury adds randomness but not accuracy to its findings.
The experience of other states seems to bear out the limited effectiveness of blindfolding the jury. Before 1970, virtually every jurisdiction that considered the issue precluded advising juries of the effect of their answers to comparative negligence questions. See Price Ainsworth & Mike C. Miller, Removing the Blindfold: General Verdicts and Letting the Jury Know the Effects of its Answers , 29 S. Tex. L. Rev. 233, 237 (1987). As the Court notes, however, there seems to be a trend toward letting juries know the effect of their answers. Most jurisdictions that have addressed the issue in the last twenty-five years have moved away from the rule against informing the jury of the legal effect of its answers. See Loup-Miller v. Brauer & Assocs.-Rocky Mountain, Inc. , 572 P.2d 845, 847 (Colo. Ct. App. 1977) (citing Colo. Rev. Stat. § 13-21-111(4)); Kaeo v. Davis , 719 P.2d 387, 396 (Haw. 1986); Seppi v. Betty , 579 P.2d 683, 687-92 (Idaho 1978); Thomas v. Board of Township Trustees , 582 P.2d 271, 280 (Kan. 1978); Dilaveris v. W.T. Rich Co., Inc. , 673 N.E.2d 562, 566 (Mass. 1996); Krengel v. Midwest Automatic Photo, Inc. , 203 N.W.2d 841, 848 (Minn. 1973); DeCelles v. State Dep't of Highways , 795 P.2d 419, 42021 (Mont. 1990); Roman v. Mitchell , 413 A.2d 322, 327 (N.J. 1980); Schabe v. Hampton Bays Union Free Sch. Dist. , 480 N.Y.S.2d 328, 336-37 (App. Div. 1984); Smith v. Gizzi , 564 P.2d 1009, 1013 (Okla. 1977) (Oklahoma utilizes general verdicts); Peair v. Home Ass'n of Enola Legion No. 751 , 430 A.2d 665, 67172 (Pa. Super. Ct. 1981); McIntyre v. Balentine , 833 S.W.2d 52, 57 (Tenn. 1992); Dixon v. Stewart , 658 P.2d 591, 596 (Utah 1982); Adkins v. Whitten , 297 S.E.2d 881, 884 (W. Va. 1982). See also Ainsworth & Miller, supra , at 23738 ("Today, there is a clear trend, among the comparative negligence states that have considered the issues, to permit the jury to know the ultimate effect of its percentage findings."); Denton, supra , at 6 (enunciating the two principal criticisms of this rule: first, jurors generally know the effect of their answers anyway; and second, the fear that a jury may alter an answer if it knows the legal effect is inconsistent with the concept of a fair and impartial jury system).
The reasons for this about-face were expressed by the Idaho Supreme Court in Seppi v. Betty , 579 P.2d 683, 690 (Idaho 1978):
It would be incredibly naive to believe that jurors, after having listened
attentively to testimony of the parties and a parade of witnesses and after having
heard the arguments of counsel, will answer questions . . . without giving any thought
to the effect those answers will have on the parties and to whether their answers will
effectuate a result in accord with their own lay sense of justice. With respect to most
questions, the jury would have to be extremely dullwitted not to be able to guess
which answers favor which parties. In those instances where the legal effect of their
answers is not so obvious, the jurors will nonetheless speculate, often incorrectly, and
thus subvert the whole judicial process.
It is this latter problem, juries speculating on the effect of their answers, that
creates a unique danger when the issues in a comparative negligence case in Idaho
are submitted to a jury . . . .
Further, "jurors are concerned about the effect of their verdicts on the ultimate outcome of the case and the use of a special verdict or special interrogatories does not magically eliminate that well known trait of American juries." Id. at 689.
Trying to blindfold the jury belies the realities of trying a case under modern procedure. Good lawyers develop a theory of the case and pick a few themes they hope will resonate with the jury. They try to advance their theory at every opportunity, beginning with the pleadings, through opening statement and voir dire, all during the trial itself, and concluding with the charge and final summation. The whole aim of this exercise is to appeal to the conscious and subconscious mind of the jury. Jurors would not be human if they did not give some thought to the effect of their answers. Jurors bring their own sense of right and wrong to the task. However, a rule intended to keep jurors from seeking their own vision of justice will not work, even if it were desirable. The criminal courts trust jurors to know the effect of their answers in death penalty cases, society's most critical legal determination.
It is time to reposit similar responsibility to jurors of civil cases, because we either trust them or we do not. I would not adhere to "the decades of Texas law that holds that Texas juries cannot be directly informed of the legal effect of their answers" as the Court says it does today. __ S.W.2d __. To the extent necessary in the present case, I would overrule Grasso v. Cannon Ball Motor Freight Lines, 81 S.W.2d 482, 487 (Tex. 1935), and call for the amendment of Rule 277. Furthermore, I would not only tell the jury about the fifty-one percent rule and the statutory trebling of damages, but I would also eliminate the collateral source rule. In short, it is time to take the blinders off in order to bring clarity and honesty to our search for the truth.
For these reasons, I concur.
_______________________
Raul A. Gonzalez
Justice
OPINION DELIVERED: July 14, 1998