Dr. Baker is Professor of Political Science, School of American Studies, Harding College, Searcy, Arkansas.
Much is heard today about judge-made law. This type of legislation is created in a somewhat negative fashion. It comes into being through a court decision vacating on constitutional grounds a policy established by the legislature and thereby in effect instating a conflicting one.
But it is not only the judges who are being accused of legislative usurpation; our juries are having a similar charge leveled against them. It is alleged that they, too, now and then thrust themselves into the roles of lawgivers and undertake to remake laws to fit their own ideas.
Judges use open nullification to achieve their objectives, while jurors rely on a subtle kind of sabotage to attain theirs. When juries disapprove of a law, they slowly sap its vitality through a series of enervating verdicts until it finally becomes but a pale copy of its former self. Their continued refusal to enforce a particular law usually induces the legislature to revise it to make it conform to the jury’s conception of what it should be like.
One of the most notable examples of jury-made law in the United States today has grown out of motor vehicle accidents caused by negligence. The law on the subject, as it has stood for some time, decrees that a person injured through the careless operation of a vehicle may secure redress from the owner or driver, provided the complainant himself is without fault. If he is blameworthy in the slightest degree for his own misfortune, he is precluded from recovering compensation. The law asserts further that the plaintiff must bear the burden of proof in the prosecution of his claim, and also must prove his case by a preponderance of evidence. There are, to be sure, a few states which use the rule of comparative negligence. Under this doctrine, the plaintiff may still recover even though he is at fault, if his misfeasance is less serious than that of the defendant. The amount of damages, however, in that case is less than it would have been had the plaintiff been free from all blame.
Juries formerly gave careful weight and consideration to all of the pertinent factors here mentioned. But more recently, they seem to have lost interest in these elements and show only a minimum of concern about them. In fact, when judges and lawyers commence discussing such matters, the jurors become restless and impatient and start squirming in their chairs. To them, such talk is highly irrelevant and pointless and serves only to befog the main issue. In the minds of the jurymen all that they really need to know is the answer to two questions, and they will be enlightened sufficiently to render their verdict. These questions are: How badly was the victim hurt, and was the defendant certainly insured? If, by any chance, the defendant should lack insurance coverage, their task might be a little more difficult.
Two recent developments are responsible for this change of mood on the part of juries. One is that motor vehicle accidents have become so common that they can happen to anyone, including a juror. They have ceased to be those isolated and rare tragedies which occur perhaps once in a generation in a neighborhood. So frequently do they now take place that they are considered only slightly less certain than death, taxes, and the poor. They have become, as it were, almost a part of the warp and woof of that phenomenon known as the American way of life. The second development is the general practice of motorists to carry casualty insurance, which at least gives the impression that the defendant is an insurance company rather than an individual.
The only occasions on which the juries will now attach much importance to the question of negligence, contributory negligence, burden of proof, and similar factors are those where the defendant counterclaims that the plaintiff caused him injury, or where it is evident that the defendant is not insured. In the first instance, there are actually two defendants involved, between whom the jury must choose, and it will try in all likelihood to give due weight to the matter of culpability before determining which one should be held liable.
In the second case, where the defendant must satisfy out of his own pocket any judgment obtained against him, the jury doubtless will want to be sure that he has been remiss before saddling him with such a burden. However, some jurors, especially the insurance-minded, might feel that a person so foolish and inconsiderate as to venture upon our hazardous highways without adequate coverage should be required to pay the damages of any accident to which he is a party, fault or no fault. Such an individual, they might argue, by creating a situation wherein an injured motorist might be denied compensation due him, is a serious menace to the road and deserves no indulgence.
Against the background of these developments, the average juror reasons about as follows. The plaintiff has been hurt in an automobile accident, and therefore is entitled to recoup his losses in one way or another. The juror knows that if he were in the plaintiff’s place, he would expect restitution from some source. The most likely source to which to turn, it would seem, would be the defendant because it was his car, after all, which caused the injury. There may be, to be sure, some little question about fault, but that factor now is of small importance; for whether the defendant is or is not to blame, he will not be compelled to expend his own money. The obligation to pay has been imposed on the insurance company, which has been collecting millions of dollars in premiums from thousands of people to cover such cases.
Consequently, the whole matter boils down to this: If a verdict is found against the defendant, the plaintiff will be reimbursed, the defendant will lose nothing, and the insurer will be able to make the necessary amends without causing even a dent in its huge assets. In other words, at least one person will be made very happy, and no one will become especially aggrieved. What must happen to insurance rates as a result of this philosophy seems to have been largely ignored.
What the juries are actually accomplishing through their verdicts therefore is a partial revision of the law of automobile negligence. More particularly, they are discarding the old rule requiring the plaintiff to prove affirmatively negligence by the defendant, and in its place are substituting a new one which virtually presumes negligence on the part of the latter. This means that all a plaintiff may be required soon to do is to allege lack of due care, and force the defendant to rebut the allegation by positive proof. Stated a little differently, the burden of proof, for all intents and purposes, is being transferred from the complainant to the defendant, contrary to an ancient legal principle.
The English courts have already changed the law of automobile negligence in at least one important respect. They have done so in order to give expression to what they believe to be a new public attitude toward the subject. These courts have all but rejected the rule requiring affirmative proof of lack of due care as it applies to certain accident cases, and have taken to inferring negligence in such instances.
Lord Justice Denning of the English Lords of Appeals, in an article in the November 1955 issue of the American Bar Association Journal, shows how this latest trend of thought is taking shape. He relates a recent occurrence in England where two cars one night crashed into each other, killing both male drivers. There were no witnesses to the accident other than the victims; nor was there any proof of negligence on the part of either man. The Court of Appeals, however, rose to the occasion, and by exercising a rare bit of ingenuity, came up with the inference that both men were at fault; for otherwise how could the accident have occurred? It also created the fiction that each man was equally to blame for the other’s demise. Once these two propositions were established, it was easy to find that each widow was entitled to an award because of the delinquency of the other lady’s husband. Since England has compulsory automobile insurance, the estate of neither decedent was held liable; the insurers of the respective drivers were compelled to do the paying.
The Court here not only did violence to a basic rule of negligence but conveniently overlooked a host of possibilities as likely as absence of due care which might have caused the accident. But according to the Lord Justice, if the Court had not decided as it did, “See what . . . would have happened . . . . If those two widows had lost their claims, it would mean that the insurance companies would go scot free and the widows would get nothing.” In other words, the Court evidently felt that it had a duty to concoct a legal theory, however farfetched it might be, whereby the widows could recover and the insurers would be forced to make restitution, regardless of all other considerations.
There is a school of thought in this country which insists that juries, judges, and the people are all lagging badly in their thinking with respect to one phase of motor vehicle accidents. This aspect concerns the extent of compensation coverage. The members of this school contend that the general character of automobile disasters has so changed that all parties to them, including the wrongdoer or tort-feasor, should be paid for their injuries. Such a proposal may seem unjust, unrealistic, and even fantastic; but it is being pressed earnestly by this group, which has constructed a very attractive, though perhaps specious, argument in its support.
The advocates of this scheme maintain that automobile accidents are one of the products of our modern social order. Specifically, they are the result of two recent growths in our society. One of these is the extreme mobility of our people; the other is the widespread demand for high-powered cars. The public insists upon the use of these faster motor vehicles although fully aware that they are a constant danger to the millions who travel our highways. This condition had made the motorist a captive or innocent victim, whichever you prefer, of society, and has rendered him virtually powerless to protect himself or to save himself from injuring others. Consequently, injuries which he may cause or suffer stem not from any error or omission of his but from an inherently dangerous situation foisted upon him by the social organization which has made him its prisoner. This social organization, being the villain in the piece, so continues the argument, should provide a compensatory system to take care of the losses experienced in motor vehicle mischances.
The rationale of this proposal is not of recent origin. It came into being in connection with industrial injuries about a half-century ago, and was soon translated into an appropriate statute. The law in question established a workmen’s compensation system, under which a wage earner became entitled to redress for those impairments sustained in the course of his employment without regard to the existence of fault on his part or a lack of it on the part of his employer. The only times when he would fail of an award would be those occasions where the injury was willfully self-inflicted or had resulted from his own intoxication. Today nearly every state in the Union has some sort of a program of this type.
In most states, industries are required to be insured against industrial injuries through either private insurance companies or a comparable state agency. Such injuries are compensated in accordance with a scale of remuneration set up by law. The loss of an eye is valued at one figure, the deprivation of an arm or leg at another, and so on. The amounts to be paid and the length of time the payments run vary with the extent and duration of the disability. Since fault is not a factor and the sums to be paid are calculated on a more or less automatic basis, administrative agencies are substituted for the regular courts in settling claims. It is true that a worker might secure a larger amount of money if he were left to his common law right of action against his employer, but in such an event he would also run the risk of obtaining absolutely nothing. Under the workmen’s compensation system his award is certain and unfailing.
If all automobile injuries are to be compensated without regard to fault, some innovations in the law similar to those governing industrial accidents may be expected. In the first place, compulsory insurance for all operators must be instituted so that all who may partake in the benefits will be made to share in the cost. In the second place, with the advent of the compulsory feature, limits will have to be placed upon the awards, as is done in the case of industrial mishaps; otherwise there will be a tendency for the awarding agency, be it administrative or judicial, to allow raids on the insurance funds, even to a greater extent than our juries now permit. In the third place, it might be proposed to supplant the courts with an administrative agency to determine claims.
In the past, when negligence was an essential ingredient of automobile accident claims and it was thought that the proper determination of fault involved an interplay of certain subtle and imponderable qualities which only a jury possessed, a cold impersonal administrative board was held incompetent to make correct decisions in such cases. But with the passing of the culpability factor, leaving only the question of extent of injuries within limits prescribed by law to be decided, the people probably would accept for this task a group of experts capable of acting more expeditiously and effectively than a slower moving judicial body.
There can be little doubt that the public attitude toward vehicle accidents has been undergoing a marked transformation. The alarming toll of life, limb, and property taken on our highways has been mainly instrumental in bringing about this conversion. This appalling circumstance has produced a sense of futility and frustration in the average citizen, and made him feel inadequate to cope with the problem as an individual. He has become so baffled bY its innumerable implications, ramifications, and effects that he is not adverse to shedding the responsibilities involved and shifting them to the collective shoulders of the community. More and more is he becoming enamored of the notion advanced by some people that he is but the unfortunate victim of a sorry condition imposed on him by society, and therefore should be absolved from all accountability in connection therewith. Such a thought serves to lift a tremendous burden from both his nervous system and his conscience.
The installation of an automatic compensatory program for all motor vehicle injuries presents an intriguing prospect to the motorist. Under this scheme, he would no longer be forced to traverse the long tortuous path of a court trial, perhaps only to find at the end of it that his offender is un-insured and hence financially irresponsible. Nor would he have to worry about a jury bringing in a verdict for damages far in excess of his coverage should he himself be the defendant. Moreover, even where he is the culprit, he can be sure of restitution for his own losses. Call such a scheme socialism, if you will, but John Q. Motorist is commencing to cast approving glances in its direction.
If the ordinary juror were asked whether he believes in socialism, he would throw up his hands in horror at the thought. He probably would use some choice and colorful language to express his denial. Yet through the medium of his verdicts he is laying the groundwork for a species of socialization, which requires all drivers collectively to assume the liability of the individual operator without regard to the element of fault. In short, he is coming close to substituting a public responsibility for a personal one. The juror has not reached the stage in his thinking where he is ready to requite the wrongdoer for his injuries but that phase may not be as far off as some people might believe. In any event, one thing seems certain: that the juror is in the process of helping to write a new and important chapter in the law of the road.