Harbison v. Briggs Bros. Paint Mfg. Co.

Buenett, Justice,

(dissenting).

I cannot agree to the majority opirnon herein.

This suit originated in the Circuit Court wherein Har-bison 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 *552 mitted a special issue to the jury and this body returned a verdict in favor of the defendant on this special issue. The trial judge being of the opinion that this was determinative of the entire lawsuit dismissed the case. An appeal was seasonably perfected to the Court of Appeals, and that court held that under the practice in this State it was error to submit special issues, as done herein, in a law case, and that sec. 20-1316, T.C.A., did not permit such a practice in a law case. This question is not before us on certiorari because of what is hereinafter said. The Court of Appeals though after finding this error concludes for reasons hereinafter stated that such error was harmless, because the merits of the case have been reached and there was no reversible error therein. That court says:

“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:

*553 ‘ ‘ G-entlemen of tlie Jury, tlie Court in its sound discretion, lias 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 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 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 *554 the record in this case. The record is in two volumes, consisting of something like 300 pages. The plaintiff, Harbison, bought certain products from the defendant, Briggs Company, on July 9, 1958, and he as a contractor was doing certain work in a house and applied the substance, which he said was delivered to him by Briggs Brothers in a certain can which he identified and exhibited to the jury, which was marked Exhibit 2, and that as a result of his spraying this stuff, etc., an explosion occurred which severely burned him. The record is replete on both sides by testimony of experts and others as to the inflammability of the substance, and Fire Marshals, etc., testify as to the rules and regulations and things of that kind. This can, which Mr. Harbison testifies in at least three places in the record as being the can that the stuff that blew up was delivered to him in, stated on it, “Odorless paint Thinner, 1 Gallon U. S. Liquid Measure, Manufactured by Post Brokerage Company, Nashville, Tennessee”. He states very positively and emphatically that this Exhibit No. 2 with these identifications on it, as well as the identification “Bug Killer” written by crayon on the can, was the can that exploded. There is no evidence to the contrary by the plaintiff that the liquid, whatever it was, that caused the damages complained of, did come in this can. This was conceded in argument before us as it must be because this is what the record shows.

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 *555 have never had in their place, never bought any or had any can there, with the Post peoples ’ label on it, or such a label as is on the can which Harbison introduced. There is also proof, of course, that the stuff that was delivered to Harbison had the Briggs Brothers Company’s label on it when it came out of the shelf where these things are kept. In other words, they testify to a state of facts which was absolutely to the contrary to what Harbison had testified.

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 can 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 he 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 he 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 problem for the jury, and by submitting special issues certain issues *556 bearing thereon might on other features of the lawsuit be left out. In other words, our practice is merely following the old common law rule. We hereinafter will refer to the common law rule in reference to certain constitutional questions. What we say there in reference to the Constitution is equally applicable to rules of practice in this State. Under the ancient form of the common law rule and the variance from it under practice, unless there is prejudicial error committed therein, certainly a case should not be reversed and sent back for another trial.

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 whether 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 ivas 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 *557 jury trials and the division of matters submitted to a jury, whether it is divisible or not, and all of these apply equally to a matter of practice as is herein held to be erroneous, but so long as this erroneous conclusion did not bar the plaintiff of his right to a trial by jury on a determinative issue of fact and so long as he has had this right to a trial by jury, procedural or practical errors certainly have not harmed the plaintiff, or in any wise done prejudice to him.

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 (sec. 27-116, T.C.A.):

“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 *558 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 Article 1, Section 6 of our Constitution, providing “That the right of trial by jury shall remain inviolate * * *” and Amendment 7 of the United States Constitution making similar provisions.

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 court. If there was error in one particular it was necessary for the appellate court to reverse the whole case and *559 remand it all for a new trial. This doctrine in its extreme was exemplified in Edie v. East India Co., 1 W.Bl., 295, which was an action on two bills of exchange, where there was a verdict for the plaintiff in one of them and for the defendant on the other. In setting aside this verdict because of the error in the finding for the defendant, Lord Mansfield said: “There is a verdict in part for the plaintiff; * * * but for form’s sake we must set aside the whole verdict.” The only reason given by this the greatest of English Judges for this practice was that it was required for form’s sake. It is fair thus to assume, since this was the only reason he gave, that no better reason existed. Due to this fact the overwhelming majority of jurisdictions in this country, including the United States Supreme Court (Gasoline Products v. Champlin Refining Co., 283 U.S. 494 , 51 S.Ct. 513 , 75 L.Ed. 1188 , have over the years adopted an entirely different view; and have arrived at the practice of dividing verdicts, thus a verdict can be sent back by the appellate court for an error in one particular and not in the other, and this does not deprive the parties of their constitutional rights to a jury trial.

What is a “jury trial” under our Constitution, the United States Constitution, and most constitutions, has been well said by Mr. Justice Cray 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 *560 them and to the constable in charge, and to enter judgment and issue execution on tlieir 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 facts, 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 *561 either may waive and that neither is entitled to a trial by jury unless demand is made in compliance with sec. 20-1203 et seq., T.C.A. Jnry trials are denied in Workmen’s Compensation cases by statute (sec. 50-1018, T.C.A.) and such a denial is constitutional because the parties by accepting that statute (Workmen’s Compensation) waive the right to trial by jury. Scott v. Nashville Bridge Co., 143 Tenn. 86 , 223 S.W. 844 .

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.

*562 Tims we have seen that the courts have recognized that they have the right to direct a verdict and set one aside under proper circumstances. The courts likewise have the right, where there is a judgment that is valid as to one of the two defendants and is void as to the other, to reverse as to one and affirm as to the other. Merely because the case is thus divided and may be sent back there is no constitutional prohibition here. See Bentley v. Hurxthal, 40 Tenn. 378 ; and many other cases on related questions as set forth in Note 14 to sec. 27-117, T.C.A. This is merely cited to show that we recognized in this State the antiquity of the rule at common law as laid down by Lord Mansfield as here quoted, that there could be no division of a verdict.

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 upon a review of the whole case that the jury has settled the issue of lia *563 bility fairly and upon sufficient evidence, so that disassociated from other questions it ought to stand as the final adjudication of the rights of the parties, * * V’

Prom 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 Carolina 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 (sec. 27-117, T.C.A.).

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 *564 estimate of the writer of this opinion the truth is that this, theory of the indivisible verdict is fallacious; such verdicts being divisible are not, according to the circumstances of the particular case. For instance, we in Huffman v. State, 200 Tenn. 487 , 292 S.W.2d 738 , held that in a criminal case although the constitutional provision in that case (Sec. 9, Art. 1 of our Constitution) and that of the Federal Constitution are different applying to criminal cases, the rule of reason has to be the same. We held in that'case on good authority that Huffman would only be sent back for a trial to fix the amount of the verdict, and consequently there was a division in this criminal trial.

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 (sec 27-117, T.C.A.), which is nothing more than what the courts of this State did long prior to the passage of such an Act. The application of' such a principle was naturally a judicial function which the court could carry out through its inherent powers and right. The passage of this Act fifty years ago, was merely the implementation by the Legislature of what was a judicial right and duty theretofore. Some members of the bar have never gotten accustomed to the fact that when there is no harm done there shall not be a reversal; that it must be a prejudicial error; and have stuck ■ to the argument and theory that for any error *565 a case should be reversed. This certainly does not conform to common sense, and the practice of law as it should be practiced. “The test (determining whether or not the error is prejudicial) is said to he whether, in the circumstances of the particular case, it sufficiently appears that the rights of the complaining party have been injuriously affected by the error.” 3 Am.Jur., page 563, sec. 1007. Of course, there is no set invariable rule upon which the application of the harmless error statute can be applied, or the inherent jurisdiction of the court can be applied, to these things.

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 constituted 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), hut the Court then said conceding this to he 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.” *566 If we are to follow the doctrine of stare decisis, it certainly is obligatory on this Court in the present case to follow the case list cited, because therein the direct proposition without the statute requiring jury trials being argued or cited in that case, was nevertheless the direct proposition before the Court, because the Court was not allowing them a jury trial in that case. Many other cases in this State could be found supporting this proposition.

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.