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Skidmore v. Baltimore & O.R. Co.


March 15, 1948


Author: Frank

Before L. HAND, SWAN, and FRANK, Circuit Judges.

FRANK, Circuit Judge.

1. The judge properly denied the motion for a directed verdict or a new trial. The evidence was sufficient to justify the jury in concluding (a) that defendant directed plaintiff to work in the manner and at the place in which he worked, and (b) that defendant was negligent, in requiring plaintiff to perform such services when defendant had not cleared the snow and ice under the car. Since the judge properly charged with respect to a deduction for contributory negligence, pursuant to the Act, we must assume that the jury made such a deduction. On the record before us, we cannot say that, after a reasonable deduction, a verdict of $30,000 was excessive (assuming that we have the power to consider that question).

2. Defendant argues that the judge erred in denying its request for a special verdict. We cannot agree.

Undeniably, the verdict affords no satisfactory information about the jury's findings. But almost every general verdict sheds similar or even greater darkness. Such verdicts account for much (not all) of the criticism of the civil jury. Some revaluation of the jury system seems not unjustified in the light of the fact that ours is the only country in the world where it is still highly prized. Lauded as essential to individual liberty and democracy, and imported in the late eighteenth and nineteenth centuries from England and the United States, trial by jury was adopted in criminal cases on the European continent,*fn1 but subsequently ceased there, in pre-Hitler days, to maintain its popularity.*fn2 Nor can that attitude be explained as a symptom of decreased interest in democracy and individualism. For Scotland, surely long a land of liberty-loving individualists, having in the sixteenth century virtually rejected the civil jury,*fn3 re-adopted it in 1815, and, still later, all but gave it up. In England, whence trial by jury came to us, it is now seldom employed in civil suits, has been abandoned in criminal prosecutions other than for major crimes, and even there is used decreasingly.*fn4 In the United States, the number of jury-waivers indicates the jury's slowly waning popularity.*fn5 But here, especially in the federal courts, the civil jury, in many cases, cannot be eliminated except by constitutional amendments. We must, then, as to some kind of cases,*fn6 assume that it will long be with us.

But what many persons regard as its major defects can be mitigated.One device which will help to achieve that end is the special or fact verdict. Those who resent any reform which invades the jury's province should be reassured by the historians who teach that the special verdict is no new-fangled idea, but one almost as old as the jury itself, older indeed than the modern jury. In those early days, Morgan tells us, jurors often successiully insisted upon the right to render such verdicts against the desires of the judges who wanted general verdicts.*fn7 To be sure, in this country, during the latter part of the eighteenth and the early part of the nineteenth centuries, the right to return a general verdict was highly esteemed as the jury's prerogative, especially in criminal cases; the judges then instructed the juries that they were to decide both "the law" and the facts, not being bound by the opinion of the trial judge.*fn8 Most jurisdictions later repudiated that doctrine.*fn9 The courts and legal writers declared that, if juries had the right to ignore the judges' instructions as to the applicable legal rules, the "law" would "become as variable as the prejudices, the inclinations and the passions of men"; "the parties would suffer from an arbitrary decision"; "decisions would depend entirely upon juries uncontrolled by any settled, fixed, legal principle," and would be "according to what the jury in their own opinion suppose the law is or ought to be"; our government" would "cease to be a government of laws and become a government of men"; "jurors would become not only judges but legislators as well"; the "law" would "be as fluctuating and uncertain as the diverse opinions of different juries in regard to it"; jurors would be "superior to the national legislature, and its laws * * * subject to their control" so that a "law of Congress" would "be in operation in one state and not in another."*fn10

Yet no amount of brave talk can do away with the fact that, when a jury returns an ordinary general verdict, it usually has the power utterly to ignore what the judge instructs it concerning the substantive legal rules, a power which, because generally it cannot be controlled,*fn11 is indistinguishable for all practical purposes, from a "right."*fn12 Practically, then, for all we may say about the jury's duty when it renders a verdict, we now do have the very conditions which we were warned would result if the jury had the right to decide legal propositions: cases are often decided "according to what the jury suppose the law is or ought to be"; the "law," when juries sit, is "as fluctuating and uncertain as the diverse opinion of different juries in regard to it"; and often jurors are "not only judges but legislatures as well." Indeed, some devotees of the jury system praise it precisely because, they say, juries, by means of general verdicts, can and often do nullify those substantive legal rules they dislike,*fn13 thus becoming ad hoc ephemeral (un-elected) legislatures*fn14 (a state of affairs singularly neglected by most writers on jurisprudence,*fn14a who would do well to modify their ideas by recognizing what might be called "juriesprudence"). Surprisingly, that sort of defense of the general verdict is not seldom voiced by lawyers who, in the next breath, demand strict adherence to the legal precedents.*fn14b

"Competent observers," writes Judge Rossman, "who have interviewed the jurors in scores of jury trials, declare that, in many cases where the general verdict was employed, principal issues received no consideration whatever from the jury."*fn14c The general verdict, then, has some strange characteristics. As Sunderland puts it.*fn15 "The peculiarity of the general verdict is the merger into a single indivisible residuum of all matters, however numerous, whether of law or fact. It is a compound made by the jury which is incapable of being broken up into its constituent parts. No judicial reagents exist for either a qualitative or a quantitive analysis. The law supplies the means for determining neither what facts were found, nor what principles of law were applied, nor how the application was made. There are therefore three unknown elements which enter into the general verdict; (a) the facts; (b) the law; (c) the application of the law to the facts. And it is clear that the verdict is liable to three sources of error, corresponding to these three elements. It is also clear that if error does occur in any of these matters it cannot be discovered, for the constituents of the compound cannot be ascertained. No one but the jurors can tell what was put into it and the jurors will not be heard to say. The general verdict is as inscrutable and essentially mysterious as the judgment which issued from the ancient oracle of Delphi. Both stand on the same foundation - a presumption of wisdom. The court protects the jury from all investigation and inquiry as fully as the temple authorities protected the priestess who spoke to the supplient votary at the shrine. It is quite probable that the law is wise in not permitting jurors to testify as to how they compounded their verdict, for all stability would disappear if such inquiries were open.*fn15a * * * As to the second element in the general verdict, the law, it is a matter upon which the jury is necessarily ignorant. The jurors are taken from the body of the county, and it is safe to say that the last man who would be called or allowed to sit would be a lawyer. They are second-hand dealers in law, and must get it from the judge. They can supply nothing themselves; they are a mere conduit pipe through which the court supplies the law that goes into the general verdict. But while the jury can contribute nothing of value so far as the law is concerned, it has infinite capacity for mischief, for twelve men can easily misunderstand more law in a minute than the judge can explain in an hour. Indeed, can anything be more fatuous than the expectation that the law which the judge so carefully, learnedly and laboriously expounds to the laymen in the jury box become operative in their minds in its true form? One who has never studied a science cannot understand or appreciate its intricacies, and the law is no exception to this rule. The very theory of the jury and its general verdict is thus predicated upon a premise which makes practically certain an imperfect or erroneous view of the principles of law which are to be compounded into the verdict. The instructions upon the law given by the court to the jury are an effort to give, in the space of a few minutes, a legal education to twelve laymen upon the branch of the law involved in the case. Law cannot be taught in any such way. As to this element, accordingly, the general verdict is almost necessarily a failure. As to the third element in the general verdict - the application of the law to the facts, we find the same difficuly as in the case of the first element - a merging of the law into the verdict in such a way that it is impossible to tell how or whether the jury applied the law. They way have applied it in a wholly wrong way, or they may have failed to apply it at all. No analysis of the verdict can be made which will throw any light on the process. Since the case can ordinarily go to the jury only if a verdict either way is legally possible, whatever the jury does is presumed to be right, and this presumption excludes any inquiry from the jurors themselves. Cases may arise where the verdict shows on its face a failure to properly apply the law, usually as relating to the measure of damages, but in the vast majority of cases the verdict is a complete mystery, throwing a mantle of impenetrable darkness over the operations of the jury. Whether the jurors deliberately and openly threw the law into the discard, and rendered a verdict out of their own heads, or whether they applied the law correctly as instructed by the court, or whether they tried to apply it properly but failed for lack of understanding, - these are questions respecting which the verdict discloses nothing. So far, therefore, as the third element goes, the general verdict is an unknown and unknowable mystery, with the balance of probability against it. * * * We come, then, to this position, that the general verdict * * * confers on the jury a vast power to commit error and do mischief by loading it with technical burdens far beyond its ability to perform, by confusing it in aggregating instead of segregating the issues, and by shrouding in secrecy and mystery the actual results of its deliberations.* * * The record must be absolutely flawless, but such a result is possible only by concealing, not by excluding mistakes. This is the grfat technical merit of the general verdict. It covers up all the shortcomings which frail human nature is unable to eliminate from the trial of a case. In the abysmal abstraction of the general verdict concrete details are swallowed up, and the eye of the law, searching anxiously for the realization of logical perfection, is satisfied. In short, the general verdict is valued for what it does, not for what it is. It serves as the great procedural opiate, * * * draws the curtain upon human errors and soothes us with the assurance that we have attained the unattainable.*fn15b

The general verdict enhances, to the maximum, the power of appeals to the biases and prejudices of the jurors,*fn15c and usually converts into a futile ritual the use of stock phrases about dispassionateness almost always included in judges' charges.*fn15d Many books on trial tactics, written by experienced trial lawyers, which give advice as to how to arouse juries' emotions, make the point that a jury tries the lawyers rather than the case, and that the lawyers, in jury trials, must recognize themselves as actors or stage-managers engaged in theatrical performances.*fn16 In a series of pamphlets on trial practice, recently published under the auspices of the American Bar Association, one author writes that "the advocate * * * must always recognize that the jury is judging the lawyer as well as the witnesses, quick to take sides because of the protagonists rather than their opinion of the testimony";*fn17 another says that the jurors' reaction to trial counsel "may be more important than the reaction to the client, for the client appears on the stand only during a relatively brief period, while the lawyer is before the jury all the time"; this same author gives detailed suggestions of means by which a lawyer may "ingratiate himself" with the jury.*fn18 A court has solemnly decided that "tears have always been considered legitimate arguments before a jury," that such use of tears is "one of the natural rights of counsel which no court or constitution could take away," and that "indeed, if counsel has them at command, it may be seriously questioned whether it is not his professional duty to shed them whenever proper occasion arises. * * *"*fn19 Harris, in his well known book on advocacy, says, "It may be that judgment is more easily deceived when the passions are aroused, but if so, you [the lawyers] are not responsible. Human nature was, I presume, intended to be what it is, and when it gets into the jury-box, it is the duty of the advocate to make the best use of it he fairly can in the interests of his client."*fn19a This is no laughing matter.For prejudice has been called the thirteenth juror,*fn19b and it has been noted that "Mr. Prejudice and Miss Sympathy are the names of witnesses whose testimony is never recorded, but must nevertheless be reckoned with in trials by jury."*fn19c

Small wonder that Thayer commented that jury trials are "a potent cause of demoralization to the bar,"*fn20 or that Morgan, well versed in trial tactics, in reviewing a book on jury trial techniques, recently wrote:*fn21 "If only some lawyer could rise up and honestly denounce Mr. Goldstein as a defamer of his profession. * * * If only a reviewer could assert that this book is a guide not to the palaces of virtue but to the red-light districts of the law. But a decent respect for the truth compels the admission that Mr. Goldstein has told his story truly. He has told it calmly, without a pretense of shame and [God save us!] without the slightest suspicion of its shamefulness. He has shown by his own unperturbed frankness with what compliance the profession, which would smile the superior smile of derision at the suggestion of a trial by battle of bodies, accepts trial by battle of wits. In all innocence, he has produced a volume which is a devastating commentary upon an important aspect of our administration of justice." Not that lawyers, trying to protect their clients, should be censured for employing the strategems described in such a book - as long as we retain the general-verdict jury system. But, the general-verdict jury system. But, with the general verdict in operation, and those strategems as its usual concomitants, it should not be surprising that one of the members of this court said, "I am by no means enamored of jury trials, at least in civil cases * * **fn22 ", and that Mr. Justice Cardozo, speaking for the Supreme Court, remarked, "Few would be so narrow or provincial as to maintain that a fair and enlightened system of justice would be impossible without" trial by jury.*fn22a

That is not to say that, by way of contrast with juries, all trial judges are free of all susceptibility to emotional appeals, or that - although most trial judges, because of experience, are more skilled in fact-finding than juries and better armored against the seductive wiles of lawyers*fn22b - any trial judge can (or should) slough off all predilections.*fn23 (Lord Bramwell observed, "One third of a judge is a common law juror if you get beneath his ermine"; and Mr. Justice Riddell added that "the other two thirds may not be far different."*fn23a ) Nor is it to say that, where constitutional or statutory provisions require jury trials, judges do not have the highest obligation to see that such trials are conducted in accordance with the basic principles which govern such proceedings.*fn24 But, as reasonable modifications of the jury system are not thereby precluded,*fn25 a vigorous revival of a traditional adjunct of that system, i.e., the special verdict, represents no deviation from judicial obligations.

Perhaps the least desirable feature of the general verdict, a feature which the fact verdict wipes out, is this: The theory of the general verdict involves the assumption that the jury fully comprehends the judge's instructions concerning the applicable substantive legal rules.*fn25a Yet, often the judge must state those rules to the jury with such niceties that many lawyers do not comprehend them, and it is impossible that the jury can. Judge Bok notes that "juries have the disadvantage * * * of being treated like children while the testimony is going on, but then being doused with a kettleful of law during the charge that would make a third-year law-student blanch."*fn25b Nevertheless, the patently fictitious assumption that the jurors have more legal wisdom than third-year law-students requires the upper court to reverse when a trial judge fails to state the pertinent substantive rules with sufficient particularity. Such faulty instructions, it has been said, "are the greatest single source of reversible error."*fn25c Judge Rossman says: "The general verdict is responsible for the elaborate instructions given to the jury. * * * The necessity for [these] instructions creates pitfalls which may trap the trial judge and which in turn may result in new trials, appeals and reversals."*fn25d In many instances, such a reversal means merely another trial at which the judge will intone to another uncomprehending jury a revised version of those legal rules.*fn25e There results an enormous waste of time and money. Indeed, the prospect of a prolonged new trial undoubtedly often induces a litigant of modest means to accept an unfair settlement. The fact verdict provides an obvious escape from these wasteful or unfair consequences of the general verdict.

The finding of facts, says Sunderland, "is much better done by means of the special verdict. Every advantage, which the jury is popularly supposed to have over the court as a trier of facts, is retained, with the very great additional advantage that the analysis and separation of the facts in the case which the court and the attorney must necessarily effect in employing the special verdict, materially reduces the chance of error. It is easy to make mistakes in dealing at large with aggregates of facts. The special verdict compels detailed consideration. But above all it enables the public, the parties and the court to see what the jury has really done.* * * The morale of the jury also is aided by throwing off the cloak of secrecy, for only through publicity is there developed the proper feeling of responsibility in public servants. So far, then, as the facts go, they can be much more effectively, conveniently and usefully tried by abandoning the general verdict and substituting the special verdict. * * * The special verdict is devised for the express purpose of escaping the sham of false appearances."*fn26

When using a special verdict, the judge need not - should not - give any charge about the substantive legal rules beyond what is reasonably necessary to enable the jury to answer intelligently the questions put to them.*fn26a As, accordingly, the jury is less able to know whether its findings will favor one side or the other, the appeal to the jurors' cruder prejudices will frequently be less effective. "A perverse verdict may still be returned, granted a jury clever enough to appreciate the effect of its answers, and to shape them to harmonize with its general conclusions. But it is much more difficult * * * and by requiring the jury to return the naked facts only we may fairly expect to escape the results of sympathy, prejudice and passion."*fn26b That may be too sanguine a hope; but the fact verdict may often reduce the more undesirable sway of emotions. It is suggested, too, that a special verdict "searches the conscience of the individual juror, as a general verdict does not," because "such are the contradictions in human nature that many a man who will unite in a general verdict for a large and unwarranted sum of money will shrink from a specific finding against his judgment and sense of right and wrong."*fn26c Judge Rossman writes, "Bearing in mind that in the judge-jury relationship both members of the team are entitled to fair treatment, may we not ask ourselves: Is it fair to require a jury to employ a general verdict? Since recourse to the special verdict is available, is it right to demand that a juror swear that he will obey the instructions (which the lawyers frequently say they are not sure of until they have been transcribed) and return a general verdict in obedience thereto?"*fn26d

True, the common-law type of special verdict, when utilized in this country, frequently caused so many complications that it fell into disrepute.*fn27 But in three states, North Carolina, Wisconsin and Texas, the special-verdict practice in civil cases was so modified as to avoid most of those complications.*fn27a The Wisconsin and Texas as procedures, apparently the most effective,*fn28 seem to have been the model for Rule 49(a) of the Federal Civil Rules of Procedure, 28 U.S.C.A. following section 723c, which authorized the trial judge to dispense with a general verdict and, instead, to require the return of special written findings. Rule 49(b) also authorized the judge to call for a general verdict accompanied by written interrogatories.*fn29 But, unlike the Texas trial judge, the federal district judge, under the Rule, has full, uncontrolled discretion in the matter: He may still require merely the old-fashioned general verdict.*fn30

Accordingly, we cannot hold that a district judge errs when, as here, for any reason or no reason whatever, he refuses to demand a special verdict, although we deem such a verdict usually preferable to the opaque general verdict.*fn30a Perhaps some day soon Rule 49 will be amended to make compulsory either special verdicts or written interrogatories in civil jury cases. Meanwhile, we can but hope that, in such cases, the district judges will require one or the other, on their own motion or when asked to do so.

The fact verdict will furnish no panacea.*fn31 Among other things, as previously noted, it will still be true that, in a relatively simple case, the jury will still be able to foresee what answers to the questions will produce a judgment for the side it favors. There is this, too, to consider: Some persons oppose the requirement that trial judges in non-jury cases shall file special findings of fact.*fn32 As such findings closely resemble a jury's special verdict,*fn33 it is therefore pertinent here that some of those opponents suggest, in effect, that a trial judge's decision is a unique composite reaction to the oral testimony, a composite which ought not - or, rather, cannot without artificiality - be broken down into findings of fact and legal conclusions.*fn34 Back of this suggestion there lurks something like the notions of gestalt payshology:*fn35 A judge's reaction to the evidence at a trial is apparently considered a "whole (a "gestalt" or "pattern") which cannot adequately be analyzed. Separation of a decision into "law and "fact" components, it seems to be asserted, will be "too logical," in the sense that it excludes the "intuition of experience which outruns analysis and sums up many unnamed and tangled impressions, impressions which may lie beneath consciousness without losing their worth."*fn36 Some support for this position might be sought in recent writings to the effect that logic stems from language*fn36a which, in turn, because of its inherent character, cannot fully express or symbolize "feelings," and that feelings have a rational validity, expressive of "wordless knowledge," which must not be disregarded.*fn37 While, on net balance, however, a logical assaying by a trial judge of his decision has immense value, so that in a non-jury case special findings of fact by a trial judge are eminently desirable,*fn37a the argument against special findings of fact by trial judges might perhaps be applied with somewhat greater effectiveness against fact verdicts by juries: It might be said that some one person or body, either a trial judge or a jury, should be entrusted in each case with reaching a composite reaction to the evidence, and that therefore a division of functions into explicit fact-finding by a jury and "law-finding" by a judge will yield an undesirable artificiality. Nontheless, even assuming that that argument has some cogency, fact verdicts seem clearly better than general verdicts.*fn38

L. HAND, Circuit Judge (concurring).

I concur in holding that there was evidence to support the verdict, and that it was not an error to refuse to take a special verdict along with the general verdict. I also concur in thinking that it would be desirable to take special verdicts more often. True, it would often expose the general verdict to defeat by showing how irrational had been the operation of the juror's minds. However, like my brother Frank, I am not among those who appear to esteem the system just because it gives rein to the passional element of our nature, however inevitably that may enter all our conclusions. I should like to subject a verdict, as narrowly as was practical, to a review which should make it in fact, what we very elaborately pretend that it should be: a decision based upon law. In criminal prosecutions there may be, and in my judgment there are, other considerations which intervene to make such an attempt undesirable.

SWAN, Circuit Judge (concurring).

I concur in affirmance of judgment.

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