Boyd v. Pernicano
| Decision Date | 27 September 1963 |
| Docket Number | No. 4609,4609 |
| Parties | Cal BOYD and Gertrude Boyd, Appellants, v. Frank Joseph PERNICANO, Respondent. |
| Court | Nevada Supreme Court |
Stanley W. Pierce and Don L. Griffith, Law Vegas, for appellants.
Singleton & DeLanoy and Rex A. Jemison, Las Vegas, for respondent.
Cal and Gertrude Boyd brought suit against Pernicano to recover damages sustained in a rear end collision. The jury found for Pernicano. The Boyds appeal, assigning as error defense counsel's suggestion, made during summation, that the jurors 'trade places with Mr. Pernicano' in deciding the case. 1
As a general proposition appellate courts declare error when, during summation, trial counsel has urged the jurors to place themselves in the position of one of the litigants, or to allow such recovery as they would wish if in the same position. Annot., 70 A.L.R.2d 935. Jurors should consider cases objectively. If objection to the erroneous argument is not made, the doctrine of waiver will sometimes preclude appellate review. If objection is made, sustained by the court, and the jury properly admonished, the error is usually (but not always) deemed cured. Here, objection was timely made (though only by counsel's statement 'I object,' without stating the grounds of such objection) and overruled. Hence, neither the question of waiver, nor the problem of the curative effect of court admonition to disregard, is involved. Thus, we are squarely faced with the task of deciding whether the error is harmless within NRCP 61, or prejudicial. 2
Defense counsel's statement, made near the end of his jury summation, was: 'There is something else to remember and I think this is extremely important, that tomorrow one of you may be going down on Las Vegas Boulevard and you may be stopped and somebody else may run into the back end of you and you, in turn, to somebody else, and if it doesn't happen to you it may happe to some members of your family or children, and don't forget that very simply you could trade places with Mr. Pernicano.' Certainly, we do not know whether the trial result was influenced by such statement. There is no method by which we can see the case through the jurors' eyes, nor does the 'harmless error' rule contemplate that we attempt to do so. Rather, it is our duty to search the record as a whole, and exercise a judicial discretion in deciding whether the error is harmless or reversible in nature. Lee v. Baker, 77 Nev. 462, 366 P.2d 513. We do not presume prejudice from the occurrence of error in a civil case. Pfister v. Shelton, 69 Nev. 309, 250 P.2d 239. If there appears to be a sharp conflict in the evidence upon essential issues the error is treated as having more significance in the jury's decisional process than if the case is one-sided affair. 3
The accident giving birth to this case happened on a rainy night in February on Las Vegas Boulevard South. It involved four cars in line. Mr. and Mrs. Martin were passengers in the car first in line which was stopped at an intersection waiting for traffic to clear. Cal and Gertrude Boyd (plaintiffs) occupied the car immediately behind the Martins, and had stopped. Pernicano (the defendant) was at the wheel of the car directly behind the Boyds, and Herbert Hull drove the car directly behind Pernicano. The Martins, the Boyds, Pernicano and Hull testified at the trial. It was Pernicano's defense that he had stopped behind Boyd, and that Hull drove into him, causing him to ran the Boyds and they, in turn, to hit the car first in line. He so testified. Hull corroborated him fully. The Martins stated that the Boyd and Pernicano cars were stopped behind them before the accident occurred. There is no direct evidence to contradict this version of the series of collisions. No witness was offered to testify that Pernicano's car, under its own power, ran into the rear of the Boyd car. Solely because of Gertrude Boyd's testimony that she felt two impacts, she and her husband ask us to infer that two series of collisions happened: first, that Pernicano, under his own power, struck them and...
To continue reading
Request your trial
-
Truckee-Carson Irr. Dist. v. Wyatt
...is whether the question of liability is close on the facts. If so, prejudicial error may more easily result. Boyd v. Pernicano, 79 Nev. 356, 385 P.2d 342 (1963). If the error would be harmless as to one issue in the case, but contains multiple possibilities of improper application as to oth......
-
Wyeth v. Rowatt
...the error in light of the entire record. Carver v. El-Sabawi, 121 Nev. 11, 14, 107 P.3d 1283, 1285 (2005); Boyd v. Pernicano, 79 Nev. 356, 359, 385 P.2d 342, 343 (1963). Here, the appellate record shows that during trial, evidence was presented that respondents were hormone-deficient women;......
-
DeJesus v. Flick
...held that such "golden rule" arguments are forbidden because they interfere with the jury's objectivity. See Boyd v. Pernicano, 79 Nev. 356, 358, 385 P.2d 342, 343 (1963) (improper to ask the jurors to place themselves in the shoes of the victim because such argument interferes with the obj......
-
Cook v. Sunrise Hospital & Medical Center
...a whole" to resolve whether absent the district court's error it is probable a different result may have been reached.30 Similarly, in Boyd v. Pernicano,31 when deciding whether the error complained of—an attorney's improper statement, the objection to which was overruled—was prejudicial er......