Benson v. Blair

• Decision Date: 18 September 1973
• Docket Number: No. 45368,45368
• Citation: 1973 OK 102,515 P.2d 1363
• Parties: Mary Ellen BENSON, Appellant, v. Riley T. BLAIR and Flint Steel Corporation, Appellees.
• Court: Oklahoma Supreme Court

Page 1363

515 P.2d 1363

Mary Ellen BENSON, Appellant, v. Riley T. BLAIR and Flint Steel Corporation, Appellees.

No. 45368.

Supreme Court of Oklahoma.

Sept. 18, 1973.

Syllabus by the Court

1. Title 12 O.S.1971, § 727 subsection 2 directs allowance of interest on judgments entered upon jury verdicts in personal injury actions from the time the suit was commenced to the date the trial court accepts the verdict notwithstanding the suit was commenced prior to the effective date of such legislation.

2. A legislative directive to the trial judge to add interest to a judgment is a directed ministerial duty the failure to perform which, being reflected in the record, is reviewable by the Oklahoma Supreme Court although not timely raised by appellant.

Certiorari to the Court of Appeals, Division 1.

On appeal from a judgment of the District Court in Tulsa County, Honorable Raymond Graham, Judge. The Court of Appeals held that the question of whether the trial court erred in refusing to allow interest, provided for by statute, on the judgment rendered from the date petition was filed to the date verdict was obtained, was not before the appellate court. The Court of Appeals affirmed the judgment of the trial court. Plaintiff seeks certiorari. Certiorari granted for limited purpose; decision of Court of Appeals reversed in part; judgment of trial court affirmed in part and cause remanded with directions.

Curtis L. Culver, Tulsa, for appellant.

Thomas R. Brett, Jones Givens, Brett, Gotcher & Doyle, Tulsa, for appellees.

LAVENDER, Justice:

Appellant, plaintiff at the trial, seeks certiorari to the Court of Appeals which had affirmed the judgment of the trial court. Appellant claims error in that the trial court denied interest on the verdict at the rate of 6% Per annum from the date the action was filed to the date verdict was obtained.

This was a personal injury action wherein the verdict was rendered September 10, 1971. The Journal Entry of Judgment was settled on January 7, 1972. It provided that plaintiff had judgment against defendants in the sum of $3,000.00 with interest at the rate of 10% From September 10, 1971, plus court costs. A separate order of January 7, 1972, reflected that plaintiff had orally requested the above referenced 10% Interest, and also had orally requested 6% Interest on the judgment from July 2, 1970, the date plaintiff's petition was filed, until September 10, 1971, the date verdict was obtained, pursuant to 12 O.S.1971, § 727, subd. 2. which provides in pertinent part:

'All judgments of courts of record shall bear interest, at the rate of ten percent (10%) per annum, from the date of rendition, provided that:

* * *

* * *

2. When a verdict for damages by reason of personal injuries is accepted by the trial court, the court in rendering judgment shall add interest on said verdict at the rate of six per cent (6%) per annum from the date the suit was commenced to date of verdict;'

and the settlement of the Journal Entry of Judgment was an acceptance of the verdict of September 10, 1971.

12 O.S.1971, § 727, as quoted, became effective on the same day the verdict was returned--September 10, 1971, and its 6% Interest provision must be considered, provided the matter was properly before the appellate court. Also, the 6% Interest provision applies if it may be considered retrospectively from the return of the verdict to the date of filing of the action. We grant certiorari limited to these two issues: 1. Whether the 6% Interest question was properly before the appellate court and, 2. Whether the statutory 6% Interest provision was applicable. For reasons hereinafter stated we answer both matters affirmatively.

As to whether the 6% Interest matter was properly before the appellate court, the Court of Appeals, in holding that it was not, was persuaded by the fact that plaintiff had filed a motion for new trial, which was denied, but had not alleged the matter as error in that motion, and had not mentioned it in her petition in error, which we note was filed December 3, 1971. They referred to 12 O.S.1971, § 991(b), which provides that if a motion for a new trial is filed, and a new trial is denied, the movant may not on appeal raise allegations of error that were available to him at the time of the filing of his motion for a new trial but were not therein asserted. However, as indicated, the interest matter was not acted upon by the trial court until January 7, 1972. The allegation of error was therefore not available to plaintiff when the motion for new trial was filed (September 20, 1971; overruled on November 8, 1971) nor when the petition in error was filed in the Supreme Court on December 3, 1971. The allegation of error was then raised by appellant at the next procedural step which was the filing of her brief in this court on June 26, 1972. Unfortunately for appellant, who did not attempt to amend her petition, this came too late unless the matter is to be considered on another theory. That it came too late is seen from the fact that to consider it, we would have to first equate the allegation found in the brief to an allegation in a petition in error. This is because Rule 1.14, 12 O.S.1971, Ch. 15, App. 2, provides that an appeal will be commenced by a petition in error. But if this were done, appellant would still be faced with Rule 1.15, of the aforesaid appendix, and 12 O.S.1971, § 990, which require that the petition in error shall be filed within thirty days from the date of the final judgment or final order sought to be reviewed. The final order concerned was that of the trial court on January 7, 1972, and more than thirty days thereafter elapsed before the allegation was raised by...