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Show PAGE SEVEN INTERMOUNTAIN COMMERCIAL RECORD MONDAY, DECEMBER 16, 1974 In The Supreme Court of The State off Utah F. William McGinn unanimity, to date which cases are identical or near identical in their application. Those authorities arc collected below2 and reflect a principle 'we consider sound and correct, to the end that it is prejudicial error if, in a comparative negligence cape, the court instructs the jury as to the effect or impact its answers, in a special ver'lict, will have on the outcome of the case. II and No. 13619 FloyW. McGinn, Plaintiffs and Respondents, FILED v. fact-findi- December 12, 1974 Plaintiff leaned heavily and solely, Utah Power k Light Company, a Maine corporation, Defendant and Appellant. Allan E. Mecham, Clerk v Counsel for defendant urged but one point on appeal: That the court erred in granting the motion for a new trial. The reasons the trial court assigned in support of his granting of the new trial were that 1) he failed to instruct, where he should have instructed that the jury should have been advised of the results of their percentage find- - ' ings, and in any event that 2) "The jurors were not sufficiently instructed as to the relationship, or lack of relationship, between the percentage findings and the damages" and should have been instructed "specifically that there is no relationship between the damage answer and the percentages. " Since this court long since has been a firm advocate of the concept that the jury's prime, and perhaps sole, function is that of fact finder, not prestidigitator, we take it that the answering of reason 1) above, should suffice to answer reason 2), - since the core of each instruction being a stranger to the finding of facts only, would lead, if to anything, to emotion, sympathy, and an invasion of the domain of the judicial aspect of the case, -that of applying the law to the facts found by their arbiters. Besides, plaintiff's failure to object to the court's not giving the instruction mentioned in 2) above, was a waiver thereof under Rule 51, Utah Rules of Civil Procedure. Counsel for plaintiff urges adoption by this court of a proposed rule which would be one of first impression in this state. As stated in their brief, it would be that "The jury should be advised of the effect of its percentage findings. In offering this gratuity, plaintiff says that the Idaho statute should be ignored insofar as what instructions are proper and pertinent because they are procedural and hence the law of the forum governs. We agree that the law of the forum governs where procedure is involved, but the rule is inapplicable here because (a) it would belie the very stipulation theparties mutually espoused, (b) we think the instructions in a case like this are of a substantive, not procedural bent, whose cleavage to the statutory provisions is inviolate and (c), thV(a) and (b) observations above could be ignored and still we would be constrained to and hold as we do, because we choose to subscribe to the cases decided touching the subject instructions, with apparent Sec. Idaho Code (Pocket Supp. 1973, p. 136; 1971 Ch. 186, We think Point II of plaintiff's brief having to do with refusing to admit certain photographs, to be without merit, and that Point III having to do with time restrictions on arguments anent percentages is moot, having been resolved by what we have said hereinabove. Consequently the case is remanded for vacation of the order granting a new trial and reinstatement of the judgment originally entered. WE CONCUR: E. R. Callister, A. II. Ellett, Jr. , Chief Justice Justice J. Allan Crockett, Justice R. L. Tuckett, Justice Idaho: Holland v. Peterson, 95 Ida. 728, 518 P.2d 1190, 1974; Colorado: Simpson v. Anderson, 526 P. 2d 298 (Colo. 1974); Wisconsin: Fehrman v. Smirl, 20 Wis. 2d 1, 121 N.W.2d 255 (Wis. 1963); Erb v. Mut. Serv. Cas. Co. , 20 Wis. 530, 123 N.W.2d 493 (Wis. 1963); Minnesota: Gardner v. Germain, 117 N.W.2d 759 (Minn. 1962); Arkansas: Argo v. Blackshear, 242 Ark. 817, 416 S.W.2d 314 (Ark. 1967); Tennessee: Harbison v. Briggs, 354 S.W.2d 464 (Tcnn. 1962). i 3. 517 P. 2d 416 (Colo. App. 1973). 4. 526 P. 2d 298 (Colo. App. 1974). 5. William J. Flynn "Comparative Negligence: Debate," Trial Magazine, May-Jun- e 1972; Thode, "Comparative Negligence Contribution . . .," 1973 Utah Law Rev. 406. 2. ). - FILED December 10. 1974 v. Brian Edward Maguire, Allan E. Mecham, Clerk Defendant and Appellant. HENRIOD, . .." It would seem to be such a non sequitur, state that a defendant effectively may enter a since the authorities generally plea of guilty to an offense, including murder, unless incapable of doing so for some legitimate reason, - and such a plea certainly waives a jury trial, 1. 408 U.S. 238. 92 S.Ct. 2726, 33 L.Ed. 2 346 (1972). 2. There are highly respected authorities that differ with that conclusion, under statutes like ours, included in which are: State v, Dickerson, 298 A. 2d 761 (Del. 1972); State v. Waddell, 282 N. C. 431, 194 S. E. 2d 19 (1973); and that question is now a pending subject of review on grant of certiorari by the U. S. Supreme Court. 3. Patton v. U.S., 281 U.S. 276, 50 S.Ct. 253. 74 L. Ed. 854 (1930); State v. Stewart, 110 Utah 203, 171 P. 2d 383 (1946); People v. Duchin, 12 N. Y. 2d may be waived by the defendant . No. 13386 The State of Utah, Plaintiff and Respondent, Justice: murder conviction by the court after Appeal from a second-degre- e own on his motion. Affirmed. a defendant had waived jury 351, 190 N. E. ee 2 ee Defendant says 1) that his waiver of the jury trial was not knowingly or intelligently given, 2) that there was insufficient evidence to support the conviction, and that anyway 3) the lower court erred in allowing him to waive the murder,' - a capital offense. jury where he had been charged with first-degree The record in this case amply supports the conclusion that Points 1) ' and 2), above, are wholly without merit, and no purpose of consequence would be served simply to recount the facts supporting such conclusion. As to 3), counsel for defendant makes an impressive and quite credit- which able argument, supported by some statutory and decisional-authoritywe believe, however, does not supercede that which we consider to be of better and more convincing reasoning and import, supportive of an affirmance , of the lower court's decision. Defendant points approvingly to the Furman case, which hat inculcated a nest full of stormy jurisprudential warblers that not only plague the justices responsible for it, but those nationally, anent the death penalty. But we think, ' however, that Furman is inapropos here, since the law of that case did not concern itself with the question of waiver of the jury. . Counsel for defendant's thrust is that since the latter was charged with first-degrmurder, he could, under no circumstances waive a jury even if he wanted to. This is something of a non sequitur, even though our Constitution, Article I, Section 10, says that "In capital cases the right of trial by jury shall remain inviolate," and even though that section is implemented by Title Utah Code Annotated 1953, which says "Issues of fact must be tried by a jury, be imposed, trial by jury but in all cases except where a sentence of death-maee 77-27- -2, 17 (1963). supra. Since such a recognized an accused, in reason and logic it plea must be considered a prerogative of should follow that he did not want a jury trial, - as defendant clearly has demonstrated here, - by asking that he not be tried by a jury, - for whatever personal reason he may have espoused. 4 irrespective Defendant had been charged with first-degrmurder, but the trial v. of advised defendant and his Furman court, on the strength Georgia, counsel that he considered the death penalty had been abolished by that case, murder charge. and hence dismissed the first-degr- . ! I Plaintiff received severe burns when an aluminum mast on a sailboat he was aiding in carrying to Bear Lake came in contact with a hot wire on one of defendant's transmission poles. 01, ported the rule that plaintiff, in the next preceding paragraph '. suggested we espouse. During the pendency of the inshmt a e.il, the Supreme Court of Colorado (September, 1974) reversed the Court of Appeals on the Simpson and poignantly declared that Much "inslnu timi to ho jury on the effect of its answers in the special verdict form in negligence cases is clearly impropev under our comparative negligence statute." This case effectively wiped out any vestige of decisional authority cited by plaintiff, and left it denuded save but a few authors' proposals in magazine or law review. Earlier this year, shortly before the present appeal wan perfected, the Supreme Court of Idaho, construing that state's statute which the parties here stipulated to respect, in a decision handed down after this case was at issue and trial, and in a case like the one before us, concluded, as do we, and Colorado and the rest of the states cited in footnote 2 in the following unmistakable language, that "The general rule.. '. i is that it is reversible error for the trial court to instnet the jury as to the effect their answers will have on the final outcome of the case. " f.!k-i1c- Appeal from an order granting a new trial after a no cause of action judgment had been entered in a personal injury case, where, under provisions of Idaho's comparative negligence statute,1 stipulated toby the parties as being controlling, the jury returned a special verdict concluding that plaintiff was 60 per cent negligent and defendant 40 per cent negligent, which, under such provisions, would preclude recovery by the plaintiff of the damages arrived at by the jury in a certain amount. Sec. on the decision of Colo v. Anderson, ; which sup- cdBcwLRp. r ado's intermediate Court of Appeals in Simpson HENRIOD. Justice: T. ng of the provisions of 77-27- -2, We think that because the Constitution gives him an "inviolate" right, necessarily does not mean that he has to accept it. In that sense, which is the only reasonable and fair sense we know attributable to the constitutional sanction, is to say it is a "privilege" and not a "mandate," - elsewise a constitutional interdiction ordinarily designed for the preservation of one's sacred rights might be a vehicle carrying him to rites following his own destruction by sweet forced charity which forthrightly he has attempted to shun. Such conclusion aptly it echoed in Hoffman v. State, where it was said that "what wat given to him generally at a shield should not be used as a sword." trial by and favor which an accuted may choose not to accept, at it hit prerogative in waiving confrontation of witnesses, speedy trial, countel, therefore, mutt etc. - all guaranteed conttitutional rightt. Title and cannot by any implement put pay homage to the language of itt father, another wheel on hit wagon or an appendage to hit tongue. We conclude that our constitutional protection of one's right of jury it a privilege 77-27- -2, hat atserted unconstitutionality of the statute, - a quettion we need not resolve. Our only commitment here is that the statute mutt be read in the light of the conttitution't wording, at interpreted here, and the part of it that may be surplusage or an excrescence is that severable part that teems to require something more than need be encompassed in the constitution. No one In passing, without necessity to decide the point, it might be observed that defendant atked for what he got, and to ute tuch voluntary requett at a crowbar to releate him from hit predicament, it to invite error, a tactic or ttratagem upon which court t frown or outrightly reject. |