                            IN THE COURT OF APPEALS OF TENNESSEE
                                        AT KNOXVILLE

                                                        FILED
                                                      November19, 1999

                                                      Cecil Crowson, Jr.
                                                     Appellate Court Clerk




JOHNNY D. YOUNG,                           )   NO. 03A01-9812-CV-00414
                               )
     Plaintiff/Appellant,              )
                               )
v.                                 )
                          Appeal As Of Right From
                       ) HAMILTON COUNTY CIRCUIT COURT
NORFOLK SOUTHERN RAILWAY      )
COMPANY,                  )
                       )
   Defendant/Appellee.      )    HONORABLE W. NEIL THOMAS, III




For the Appellant:                                     For the Appellee:
Robert D. Bradshaw                                      George L. Foster
Chattanooga                                           Chattanooga



AFFIRMED                                                          Swiney, J.




                                                        OPINION


             This is an appeal from the Trial Court’s denial of a Motion for New Trial filed by Plaintiff/Appellant, Johnny D.

Young. The motion was based upon allegations of a quotient verdict, improper admission of evidence, and improper argument

by counsel for Defendant/Appellee, Norfolk Southern Railway Company. Although Plaintiff prevailed in his Federal Employers

Liability Act (FELA) action against Defendant, Plaintiff alleged five grounds in a Motion for New Trial, attaching as exhibits
affidavits of five jurors, a court officer and Plaintiff’s trial counsel. Defendant responded with contradictory affidavits from four

jurors. By entry of a Memorandum and Order, the Trial Court denied four of the grounds for new trial asserted by Plaintiff, and

reserved final ruling on the issue of quotient verdict pending testimony by the jurors to resolve the contradictory statements in

the affidavits filed by the parties. A hearing was held during which the Trial Court questioned, and then heard examination by

counsel for the parties of, all twelve jurors. After Plaintiff voiced allegations of improper communication between jurors at this

first hearing, Plaintiff’s counsel and a paralegal for Plaintiff’s counsel testified at a second hearing. The Trial Court subsequently

entered a second Memorandum and Order denying Plaintiff’s Motion for New Trial in its entirety. The issue in this appeal is

whether the Trial Court erred in the application of evidence gathered in the post-trial proceedings, with peripheral assertions of

error concerning the conduct of the trial. We affirm the Trial Court’s denial of the Motion for New Trial, as all issues raised by

Plaintiff were properly, and articulately, resolved by the Trial Court.

                                                         BACKGROUND

           Plaintiff was an employee of Defendant, and filed a Complaint with the Trial Court June 30, 1995, alleging negligence

under FELA involving a workplace accident that occurred October 13, 1992. Defendant filed its Answer July 20, 1995,

denying any negligence relating to the accident at issue. After an order of dismissal, which was subsequently set aside, several

continuances, a substitution of counsel for Defendant, and the filing by Plaintiff of an Amended Complaint which added

allegations of breach by Defendant of OSHA standards relating to the accident at issue, trial was set for May 19, 1998. A

number of pretrial motions were filed, including Plaintiff’s motions in limine to instruct counsel for Defendant to refrain from

vouching for witnesses, allegedly based upon the prior experience of Plaintiff’s counsel with Defendant’s counsel, and to restrain

discussion of assumption of the risk as an improper defense under FELA. The day before trial, Plaintiff filed an agreed order

amending the amended complaint to increase the compensatory damages demand from $500,000.00 to $750,000.00.

             After seven days of trial, the jury returned a verdict in favor of Plaintiff for $25,300.00, allocating fault between

Plaintiff and Defendant at sixty-five percent and thirty-five percent, respectively, for a total judgment of $8,855.00 after

reduction by percentage of fault. Plaintiff filed a Motion for New Trial June 30, 1998, asserting as grounds: (1) quotient verdict,

(2) error by the Trial Court in admitting testimony of Plaintiff’s own negligence relating to the incident at issue, (3) error by the

Trial Court in excluding testimony alleging Defendant’s intention to terminate Plaintiff at some future time, (4) improper closing

argument by counsel for Defendant in vouching for the credibility of witnesses, and (5) that the amount of damages awarded by

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the jury was against the weight of the evidence. In support of the allegation of quotient verdict, Plaintiff filed the affidavits of five

jurors, the affidavit of a court officer with notes from the jury room attached as exhibit, and the affidavit of counsel for Plaintiff

asserting that two jurors had volunteered allegations of quotient verdict following the trial. On July 9, 1998, Defendant

responded with affidavits of four jurors denying that the method used to render their decision constituted the requisite elements

of a quotient verdict. On July 17, 1998, Plaintiff filed supplemental affidavits of two of his juror affiants with statements more

specifically setting forth the elements of quotient verdict.

           In an eight-page Memorandum and Order filed July 21, 1998, the Trial Court addressed the grounds for new trial

raised by Plaintiff, declaring each to be insufficient to justify a new trial. However, as to the issue of quotient verdict, the Trial

Court cited this Court as setting forth personal testimony of the jurors as the preferable method to resolve the issue, rather than

basing judgment solely upon the contradictory affidavits previously filed. In that regard, a hearing was held August 21, 1998

during which all twelve jurors were questioned by the Trial Court, and then examined by counsel for the parties. Plaintiff then

filed a memorandum with the Trial Court arguing, in addition to citation of law supporting the propriety of an order for new trial

upon a finding of quotient verdict, an allegation that certain members of the jury intimidated other members of the jury during

deliberations, asserting that in view of the combination of the allegation of intimidation with the allegation of quotient verdict, “

[e]quity demands that the plaintiff receive a new trial.”

           The Trial Court disagreed, and in a second Memorandum and Order filed October 2, 1998, resolved the issue by

denying Plaintiff’s Motion for New Trial, stating, in relevant part:

                 The testimony from the jurors was unusual in the sense that there was no agreement among
                 them upon what occurred during their deliberations in the jury room. Four of the jurors testified
                 that the verdict was reach [sic] by totaling the separate estimates of each juror and dividing by
                 twelve and that this was accomplished by agreement in advance. Five of the jurors testified that
                 no calculations whatsoever took place, and three of the jurors testified that while calculations
                 took place, there was no agreement in advance to be bound by the result. Given the nature of
                 that testimony, therefore, the Court is unable to find that the plaintiff has sustained his burden of
                 proving that the verdict was reached in this case through the use of a quotient verdict.

These two Orders form the principal basis for this appeal.



                                                               DISCUSSION

              The only issue on appeal is whether the Trial Court erred in denying Plaintiff’s Motion for New Trial. Plaintiff’s


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appeal focuses upon an allegation that the Trial Court acted improperly in determining whether the jury entered a quotient

verdict, with peripheral allegations of “additional cumulative error” regarding improper closing argument by counsel for

Defendant, and improper argument concerning “assumption of the risk” concerning Plaintiff’s own actions in the incident at

issue. In addition to the other affidavits and attached exhibits, prior to entering the first Memorandum and Opinion the Trial

Court examined the affidavits of the jurors under the quotient or gambling verdict exception to Tenn. R. Evidence Rule 606(b). 0

In addressing the issue of quotient verdict the Trial Court cited, inter alia, the opinion of this Court in Smith v. Gann, No.

01A01-9209-CV-00357, 1993 WL 21988 (Tenn. Ct. App. 1993). In the Trial Court’s first Memorandum and Order on

Plaintiff’s Motion for New Trial, Smith is quoted as standing for the proposition that, when the issue of quotient verdict is raised

on a motion for new trial, and contradictory juror affidavits are submitted by the parties, hearing personal testimony from the

jurors would be the preferred procedural practice.

                Although the Court of Appeals found no impropriety in resolving the dispute on the affidavits, it

                did state that “where affidavits are contradictory, it is better practice to resolve the

                contradictions by personal testimony and cross-examination.” In that case the Court of Appeals

                also held that the “movants had the burden of proving jury misconduct by a preponderance of

                the evidence.” The trial court’s finding of no impropriety was affirmed by the Court of Appeals.

                Here, the dispute is much closer, and in this context a more just determination can only result

                from a hearing with examination and cross-examination of the jurors. Counsel are requested to

                obtain a date for such a hearing.

The issue regarding admission of Plaintiff’s own conduct in the incident at issue is declared by the Trial Court to have been “

dealt with by the Court prior to the trial, and no reason has been advanced to cause reconsideration . . .,” presumably

referencing the Trial Court’s ruling on Plaintiff’s Motion in Limine on the issue. The issue of improper argument by counsel for

Defendant is discussed, and found to have had no prejudicial effect on the jury’s deliberations:

                [T]he Court does believe that counsel for the railroad did vouch for the witness in question, but
                in the context of forty-five minutes of argument by each side, the Court believes the error to
                have been harmless. Although counsel for Plaintiff couched his argument on this issue in terms of
                granting a new trial as a penalty for the conduct, this Court is aware of no authority that would
                permit a grant of a new trial as a penalty.

               Taking the three parts of the issue on appeal in the order they were discussed by the Trial Court in its first

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Memorandum and Order, we affirm the Trial Court’s finding on Plaintiff’s allegation of quotient verdict. As cited by the Trial

Court and acknowledged by Plaintiff in this appeal, the burden of proof lies with the party asserting a quotient verdict to prove

by a preponderance of the evidence the elements of a quotient verdict. “A verdict arrived at by averaging various figures is not,

in and of itself, illegal. It is only when there is an antecedent agreement, express or implied, to abide by the results that a quotient

verdict will be vitiated.” Odom v. Gray, 508 S.W.2d 526, 532 (Tenn. 1974). Thus, before any computation, there must be an

antecedent agreement to submit the resulting figure as the verdict.

             If there is such an antecedent agreement, the verdict rendered thereon is a quotient or gambling
             verdict and is vitiated thereby. Our courts do not approve of such verdicts and trial judges
             usually caution the juries against using such a method. But if there is no antecedent agreement,
             express or implied, to abide by the result, the fact that the jury subsequently agreed upon a
             quotient verdict will not vitiate the verdict.
Mayor and Aldermen of Town of Morristown v. Inman, 342 S.W.2d 71, 76 (Tenn. Ct. App. 1960).

           Here, the Trial Court not only included in its instructions to the jury an appropriate admonishment against rendering a

quotient verdict, but also determined by a preponderance of the evidence that there was no antecedent agreement among the

jurors. The specific findings of the Trial Court resulting from the two hearings on the issue are stated in the second

Memorandum and Order:

                 The testimony from the jurors was unusual in the sense that there was no agreement among

                 them upon what occurred during their deliberations in the jury room. Four of the jurors testified

                 that the verdict was reach [sic] by totaling the separate estimates of each juror and dividing by

                 twelve and that this was accomplished by an agreement in advance. Five of the jurors testified

                 that no calculations whatsoever took place, and three of the jurors testified that while

                 calculations took place, there was no agreement in advance to be bound by the result. Given

                 the nature of that testimony, therefore, the Court is unable to find that the plaintiff has sustained

                 his burden of proving that the verdict was reached in this case through the use of a quotient

                 verdict.

Plaintiff argues that the Trial Court erred “[b]y failing to judge the credibility of the jurors when they testified about whether a

quotient verdict was rendered in this case, thereby allowing that quotient verdict to stand.” This argument is supported, in part,

by Plaintiff’s contention that the Trial Court used the tally of the synopsis of the jurors’ testimony to resolve the issue. It is true

that the Trial Court did not state specific findings regarding the credibility of individual jurors in rendering the opinion, but neither
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is it true that there is any indication the Trial Court used only a show of hands by the jurors to render the decision. The

language used by the Trial Court states analysis of “the nature” of the testimony at both hearings on the issue, and does not

support any contention that the finding of the Trial Court was not based upon a preponderance of the evidence adduced.

           In further support of the assertion of error by the Trial Court in failing to assess credibility of the jurors on the issue of

quotient verdict, Plaintiff argues that one juror in particular was “very vocal and intimidating during the time the jury was out for

deliberations.” This issue is proper neither as a ground for a new trial, nor on appeal of the denial of same.

                As all experienced trial lawyers and judges know, verdicts are not always representative of the
                views of all jurors; they frequently reflect the well-held views of only one or two forceful jurors,
                and when this happens, the non-assertive jurors will sometimes come forward later and
                complain that the verdict did not represent their views. Such stultification cannot be allowed, for
                obvious reasons, even when it appears in hindsight that the verdict was unjust. The developed
                law does not permit afterthoughts by jurors.

Terry v. Plateau Elec. Co-op., 825 S.W.2d 418, 423 (Tenn. Ct. App. 1991).

As addressed by the Trial Court, there was some testimony that supported the Plaintiff’s position on the existence of a quotient

verdict. However, quotient verdict requires the condition precedent that all jurors must agree to be bound by the outcome or

the process is merely a part of the jury’s deliberations, even when the result is eventually submitted as the verdict of the jury.

                When two or three of the jurors refused to vote for or voted against the proposal to abide by
                the decision of the majority, such a proposal never became an antecedent agreement and would
                not vitiate verdicts properly reached subsequently thereto by the jury. No antecedent
                agreement having ever been made, those jurors who refused to vote, as well as those who
                voted against the original proposal, could thereafter properly change their minds and agree with
                the conclusion properly reached by the majority, and return valid verdicts accordingly.

Olins v. Schocket, 215 S.W.2d 18, 26 (Tenn. Ct. App. 1948).

Here, there was contradictory testimony on both sides of the issue of whether there was an antecedent agreement to be bound,

the jurors were examined under oath by the Trial Court and counsel for the parties, the other evidence presented was

considered, and judgment rendered. After examination of the record on appeal, we find no error in the decision of the Trial

Court on the issue of quotient verdict.

           Plaintiff argues that the Trial Court erred in allowing argument by counsel for Defendant concerning assumption of the

risk. Plaintiff frames this issue in the closing arguments by counsel for the parties, where counsel for Defendant stated, “[l]adies

and gentlemen, to go through known oil is 100 percent cold negligence. If you find that he did that, he can have no recovery.”

This argument by counsel for Defendant concerns allocation of negligence, which is not the same as assumption of the risk. 0

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Plaintiff is correct that assumption of the risk as a complete bar to an action is not a defense under FELA, but evidence of the

employee’s own negligence is still admissible under the Act. “FELA was crafted to eliminate a number of traditional defenses to

tort liability and to facilitate recovery in meritorious cases. The 1939 amendments abolished assumption of the risk, and an

employee’s contributory negligence may reduce damages but will not bar recovery.” Denton v. Southern Ry. Co., 854

S.W.2d 885, 888 (Tenn. Ct. App. 1993). Under FELA, “contributory negligence” refers to a pure comparative negligence

doctrine where Plaintiff’s recovery is reduced proportionately by whatever percentage of fault is allocated between Plaintiff and

Defendant, unlike Tennessee’s modified comparative fault system which requires the fault of the Plaintiff to be less than 50% of

the allocated fault.0 The evidence set forth by Plaintiff as improper argument of assumption of the risk by counsel for Defendant

is not persuasive, as the jury was properly instructed on allocation of fault, and it is obvious that recovery was not barred under

assumption of the risk since the jury returned a verdict in favor of Plaintiff. It appears that the evidence at trial of Plaintiff’s own

negligence was used by the jury in allocating fault between Defendant and Plaintiff. Such negligence is a proper basis for

reducing Plaintiff’s recovery under FELA. Id. After examination of the record on appeal, we find no error in the decision of the

Trial Court on the issue of admission of evidence of Plaintiff’s own negligence, nor apparent harm from the argument of counsel

for Defendant on this point.

           The issue of improper argument by counsel for Defendant is raised as an additional ground by Plaintiff, asserting that

counsel for Defendant vouched for the credibility of one or more witnesses during closing argument. The issue was raised by

Plaintiff in a Motion in Limine, citing prior experience with opposing counsel as grounds. As noted above, while the Trial Court

did find that counsel for Defendant vouched for the credibility of one witness, the Circuit Court Judge determined that no

harmful effect resulted. “It is a recognized rule in this state that the trial court, in its sound discretion, shall determine what is

proper argument in a particular case and the appellate courts will not review the action of the trial court except for palpable

abuse of that discretion.” Painter v. Toyo Kogyo of Japan, 682 S.W.2d 944, 951 (Tenn. Ct. App. 1984). Additionally, the

instructions to the jury included appropriate admonishment regarding argument by counsel for the parties. It is interesting to

note that the same law firms representing the parties in this appeal argued the issue of vouching for witnesses to this Court in

Gentry v. Norfolk Southern Railway Co., No. 03A01-9610-CV-00341, 1997 WL 406377 (Tenn. Ct. App. 1997)(perm.

app. denied). In Gentry, this Court found, as it finds here, that any error resulting from such conduct by counsel for Defendant

was corrected by the Trial Court’s instructions to the jury. After examination of the record on appeal, we find no error in the

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decision of the Trial Court on the issue of vouching for witnesses by counsel for Defendant during closing argument, nor

palpable abuse of discretion in the determination of the Trial Court relating to the finding of no apparent harm resulting from the

argument of counsel for Defendant on this point.

                                                        CONCLUSION

          The judgment of the Trial Court is affirmed. Costs of this appeal are taxed to Appellant.




                                           ______________________________
                                           D. MICHAEL SWINEY, J.




CONCUR:




______________________________
HERSCHEL P. FRANKS, P.J.




______________________________
CHARLES D. SUSANO, JR., J.




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