Burkett v. Moran
| Decision Date | 26 October 1965 |
| Docket Number | No. 40554,40554 |
| Citation | 410 P.2d 876,1965 OK 165 |
| Parties | Gordon L. BURKETT, Plaintiff in Error, v. Helen Mary MORAN, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
Where a jury returns a verdict allowing recovery for some elements of damages but specifically denying recovery for other elements of damages which have been clearly proved, and the issue of liability is the same with reference to all elements of damage, the verdict is inconsistent with itself, and plaintiff's motion for new trial upon the ground that the verdict is not sustained by sufficient evidence and is contrary to law should be sustained.
Appeal from the District Court of Tulsa County; S. J. Clendinning, judge.
Action by plaintiff, Gordon L. Burkett, against defendant, Helen Mary Moran, for damages resulting from an automobile accident. From verdict and judgment for plaintiff for an amount substantially less than prayed for, plaintiff appeals. Reversed and remanded.
Jack I. Gaither, Tulsa, for plaintiff in error.
Rucker, Tabor, Shepherd & Palmer, Thomas L. Palmer, O. H. 'Pat' O'Neal, Paul McBride, Tulsa, for defendant in error.
This appeal arises out of a 'whip-lash' injury sustained by plaintiff, Gordon L. Burkett, on February 4, 1962. Plaintiff's automobile was stopped in a line of traffic; an automobile driven by defendant Helen Mary Moran struck another one and drove it into plaintiff's automobile so as to cause the 'whip-lash' injury.
Plaintiff sued for the cost of repairing his automobile, past and future medical expenses, loss of earnings and earning capacity, and past and future pain and suffering. He alleged that his injuries were permanent.
The jury returned the following verdict:
It appears that the 'itemized statement' was voluntarily added by the jury to the form of verdict furnished by the court. No objection as to its form was made and judgment was pronounced thereon. Plaintiff appeals.
In this court, plaintiff argues, among other things, that 'The jury's verdict is inconsistent in that it made no allowance for pain and suffering, even though it held the defendant liable for all special damages claimed'.
Plaintiff's line of reasoning under this proposition is (1) that the verdict determined the issues of liability and damage in plaintiff's favor; (2) that the 'itemized statement' added by the jury conclusively shows that no award was made for pain and suffering and (3) that under the uncontradicted evidence in this case, if defendant was liable at all, an award for pain and suffering was required.
This argument must be sustained, at least as to past pain and suffering. We find uncontradicted evidence to the effect that after the accident, plaintiff suffered severe pain; that he was in the hospital, in traction, for about three weeks on one occasion and about two weeks on another; and that during this time, and afterwards, he was receiving treatment and injections for relief from pain.
No witness for the defense testified that plaintiff had not undergone pain and suffering. There was testimony by an expert witness for the defendant to the general effect that when he examined plaintiff about nine months after the accident, he could find no physical manifestations of pain and no evidence of damage to nerve tissue or nerve roots, and that X-rays of plaintiff revealed no damage to bone structure. It was the conclusion of this witness that plaintiff had suffered no injury, and the above summarized testimony may fairly be said to have been adduced in support of that proposition. By its general verdict for plaintiff, the jury rejected this testimony; also, the summarized testimony cannot be said to constitute evidence that the plaintiff suffered no pain before the date of the examination by this expert witness.
In Hallford v. Schumacher, Okl., 323 P.2d 989, this court held:
'Where a jury returns a verdict allowing recovery for some elements of damages but specifically denying recovery for other elements of damages which have been clearly proved, and the issue of liability is the same with reference to all elements of damage, the verdict is inconsistent within itself. * * *'.
In that case, which was a combined wrongful death action and a 'survival' action in which, among other things, damages for pain and suffering were asked, plaintiff's evidence of pain and suffering was undisputed. The jury's verdict awarded plaintiff damages for wrongful death and for medical, hospital and funeral expenses, but specifically denied recovery for pain and suffering. However, plaintiff did not file...
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Robertson v. Stanley
...court held that such a verdict is inconsistent and therefore invalid. Pickel v. Rosen, 214 So.2d 730 (Fla.Ct.App.1968); Burkett v. Moran, 410 P.2d 876 (Okl.1965); Hall v. Cornett, 193 Or. 634, 240 P.2d 231 In Edmondson v. Keller, 401 S.W.2d 718 (Tex.Civ.App.1966), the appellate court grante......
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Vance v. Enogex Gas Gathering, L. L.C.
...of the jury to return a percentage of fault verdict different from the verdict they finally signed and returned.) (citing, Burkett v. Moran , 1965 OK 165, 410 P.2d 876 ) (Example of ambiguous and clearly defective verdict.). Further, there is clear jurisprudence a trial judge has broad disc......
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Gould v. Mans
...to be inconsistent, Feldstein v. Harrington, 8 Wis.2d 569, 99 N.W.2d 694, Shewry v. Heuer, 255 Iowa 147, 121 N.W.2d 529, and Burkett v. Moran, Okl., 410 P.2d 876. In others the great weight of evidence compels an award for pain and suffering and failure to include such an award in the verdi......
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80 Hawai'i 188, Walsh v. Chan, 17426
...Osborn, 54 Ohio App.3d 98, 560 N.E.2d 783 (1988); Wilson v. R.D. Werner Co., 108 Cal.App.3d 878, 166 Cal.Rptr. 797 (1980); Burkett v. Moran, 410 P.2d 876 (Okla.1965). We decide to follow this line of cases. The jury verdict in the case at hand is inconsistent. The jury awarded damages for m......