The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1896-08-15
SPECIAL VERDICT LAW
TAKES AWAY THE FUNDAMENTAL
RIGHT OF JURY TRIAL.
Extracts from n Brief by w. ". Rock
moves the Right of Trial by Jury.

of the trial courts $50, 900 a year. The bench
and bar of the State have been torn up for
a year over the act. At a recent meeting
of the indianapolis Bar Association steps
were taken TO secure the repeal of the law
on the ground that it effected a denial of
justice. Many lawyers have advanced the
proposition that the act authorized the
court to invade the province of the jury, but
w. V. Rocker, in a brief ne is preparing
for the Supreme Court, takes the broad
ground that the act sweeps away the con-
stitutional right of trial by jury. In dis
cussing this point he says:
THE last General Assembly, amending
the practice act concerning special YER
diets, provided: That in all cases tried by
the jury the court shall, at the request of
either party in writing made before the in
PRODUCTION of any evidence, direct such
jury to return a special verdict upon any or
all the issues of such case. Such special
verdict shall be prepared by the counsel
on either side OF such cause and submitted
10 the court and be subject to change and
notifications of the court. Tn same shall
be in form of interrogatOrieS so framed
that the jury will be required to find one
~terrogatories. The jury. on retiring. shall
take all the pleadings in the case, includ-
ing the instructions of the court. IL in writ
ing, and the i-nterrogatories as approved by
the court, and shall answer each of the in
terrogatories submitted to them:
Two elements are contained in this act,
- 4ols ~ WHY tht RLO VI tt0
jury, and, second, 1t provides the manner
in which the functions of the jury shall be
performed. A direct declaration as to the
province of the jury is contained in the
act; an indirect limitation is also found in
the expressions as to how the duty of the
jury shall be discharged. 1t is possible TO
| limit the powers of the jury as much by
the method of procedure as by cutting
them down by express provision. Elk
pressio unius est exclusio alterius being the
rule of the Constitution. Ii must be ad-
mitted. If this act be valid. that a jury has
n, powers in rendering a special verdict ex-
cept, first, TO answer as TO facts only, and,
second, to answer as to no fact. however
material, unless expressly directed by the
court. ,u.
must determine under the constitutional
guaranty of the right of trial by jury? No
prudence will give an affirmative answer
to this question, nor will any such person
even maintain that answering as. 10 facts
is the more important or the principal
province of the jury. Indeed, there is no
principle better established than that cases
in which the facts are unGisputed or agreed
upon shall be submitted to a jury when
different differences can reasonably be
drawn from the facts.
FOR THE JURY TO DECIDE.
In the case of the Railroad Company
VS.. Stout. II WALL. at Page 66S, Mr.. Justice
Hunt. speaking the opinion of the Supreme
Court of the United States, said.
Certain facts we may suppose to be
&Ndill " III viz 81
Bile. impartial man would infer that proper
care had not been used and that negligence
existed; another man equally sensible and
equally impartial would infer that proper
care had been used and that there was no
negligence. 1t is this class of cases and
those akin to it that the law commits TO
average of the community. comprising men
Of education and men of little education,
men of learning and men whose learning
consists only in what they have themselves
seen and heard, the merchant, the me-
chanic. the farmer, the laborer: these sit
perience of the affairs of life to the facts
proved and draw a unanimous conclusion.
This average Judgment thus given Il is the
sumed that twelve men know more of the
common affairs Of life than does ore man:
illusions from admitted facts thus occurring
than can a single Judge. In no class Of
cases can this practical experience be more
sidering. We find, accordingly, although
not uniform or harmonious, that the
hhu tara lite Illus Justly ayytS Se IN h9 fbe fsd IN t are c ,1ne
disputed, it Is for the jury and not for the
judge to determine whether proper care
was given or whether they establish negli-
gence.'
c., 74S, there was no controversy about the
facts. but only a question whether certain
facts proved established negligence on one
side or rashness on the other. The House
of Lords held that 1t was the province OF
1 the JURY anu " VI tic OOGAi ~ AilhS tAC
.In Mangam VS.. Railroad Company, SO n.
Y. As, the facts We're n~nd,sputed. Inc
differences should be drawn by the jury and
not by the court.
Van Steinberg, IL Mich. %, Judge Cooley
states the rule 70 be that where the facts
are not disputed. but different minds can
honestly draw different conclusions from
them. the case should so to the jury. Judge
Cooley's opinion embraces a review of the
indiana has followed the rule stated in
the cases before mentioned. In Cleveland.
ETC.. Railroad Company vs.. Harrington,
ly1 Ind, at Page 431. it is written: 1t often
occurs that the facts and circumstances
surrounding Il particular case are such as
to warrant different differences. so that one
ference and conclusion that the injured
party was guilty of negligence. while an
other equally impartial and sensible en nan IN
such cases the courts will not adjudge the
question of negligence. but will leave it to
the jury under proper Instructions. Ralti-
more. etc. Railroad Company vs. Walborn.
1G7 Ind. 142: Mann VS.. Belt Railroad Com
pany. 12s Ind. 49,
MUST DRAW ALL INFERENCES.
..These cases demonstrate that 1t is the
province of the jury to find the facts and
to draw therefrom all differences or con-
illusions. The facts so found and the con-
illusions so stated constitute the verdict.
It's SuiIlClCllIy di0 Lax tan 10 t4C oO-C
question for the Judgment of the court.
Having thus indicated wherein lies the
province of the jury and shown its dis
tinction from the province of the court. ]
am confronted with the question, What does
the right Of trial b. jury carry with it? The
answer to this question is inevitable. The
right carries with it the guaranty that a
litigant shall have the jury ascertain the
facts from the evidence and draw infer
ences from the facts. Finding the facts
and making the conclusions are not mere
interchangeable terms. The number OF
essential conclusion had not been made by
the jury is positive assurance that the
making of conclusions is as important a
function as the finding or facts. Conclu-
sions being thus made equally as essential
as facts, in determining the sufficiency OF
a verdict, and a litigant being as much en-
titled TO the one as the other, no statute
will be valid which takes away the right in
Jury cases TO have the jury either find the
facts or draw the differences therefrom. Ii
a statute could take away the guaranteed
right that a jury shall make the conclu-
sions il could also take away the right tina
a jury shall find the facts.
Nor can ii be said that a fact and a
conclusion are one and the same thing
jury shall draw all necessary differences
when IL declares that the jury will be re.
uuired to find one single fact in answering
each of said interrogatories.'
IF there be no difference between a find
ing of a fact and the drawing Of an infer
ence therefrom. then all our decisions are
wrong and our learned judges have beer
not. Like unskilled workmen. they have
hean handling tools with whose Uses they