Henman v. Klinger

Decision Date07 January 1966
Docket NumberNo. 3430,3430
PartiesGloria HENMAN, Appellant (Defendant below), v. Robert KLINGER, Appellee (Plaintiff below).
CourtWyoming Supreme Court

R. R. Bostwick, of Murane, Bostwick, McDaniel & Scott, Casper, for appellant.

G. L. Spence, Riverton, for appellee.

Before PARKER, C. J., and HARNABERGER, GRAY and McINTYRE, JJ.

Mr. Justice GRAY delivered the opinion of the court.

Plaintiff, Robert Klinger, commenced an action against the defendant, Gloria Henman, to recover damages resulting from an automobile accident. Upon trial of the case before a jury the plaintiff obtained a verdict and judgment in the sum of $29,833.95. After denial of a motion for new trial based upon the claim that the damages were excessive and that certain errors of law occurred during the trial, the defendant has appealed.

The errors claimed are such that no extensive recital of the facts pertaining to the accident is required. Briefly, the record discloses that at about 10 p. m. on November 28, 1962, the defendant was driving an automobile in a southwesterly direction toward Lander, Wyoming, on the highway running between Hudson, Wyoming, and Lander. Defendant was alone in the car and testified she did not know how fast she was driving. Shortly before reaching a driveway to the 'Hanson Place' on the northwest side of the highway the defendant passed a car also being driven toward Lander by Mrs. Catherine Kitchen. Also appraching the area of the 'Hanson' driveway from the opposite direction was the car being driven by plaintiff, toward Hudson. According to the testimony of Mrs. Kitchen, the defendant, almost immediately after passing the Kitchen car and without signaling in any fashion and without stopping, pulled off the highway onto the edge of the 'Hanson' driveway, reversed her direction by making a U-turn across the highway, and drove back toward Hudson. When asked to locate approximately the position of the Kitchen car and plaintiff's car at the U-turn, the defendant replied that she could not do so but she 'automatically judged' that she had 'plenty of room' to make the turn. With respect to this U-turn, Mrs. Kitchen testified she slowed down to about 40 miles per hour when defendant's car passed her because of defendant's erratic driving, and then when she observed the defendant starting to make the turn in front of her she applied her brakes because defendant's car 'was close enough that I thought I would hit her.' Plaintiff's testimony as to his involvement with the defendant's car was in substance that he had observed the lights of the defendant's car and the Kitchen car coming toward him; that suddenly he saw a cloud of dust on the highway ahead; he then saw the defendant's car 'broadside in front' of him; he applied his brakes; he heard his tires 'screaming'; and the last thing he remembered was that he 'was right on top of this car.' There was other evidence tending to show that when plaintiff's car want into what was described as a 'panic skid' it skidded, out of control, some 225 feet; crossed the center line of the highway into the opposite lane of travel occupied by the Kitchen car; and collided almost 'head-on' with the Kitchen car, causing severe damage to both cars and severe injuries to the occupants. Neither the plaintiff's car nor the Kitchen car struck the car being driven by the defendant.

The important question in this case is defendant's claim that the trial court erred in permitting counsel for the plaintiff, in his argument to the jury, over timely objection, to state and 'blackboard' an award for pain and suffering on a unit-of-time basis.

The following is the tenor of the argument:

'The fact is, this man was hurt and hurt horribly and he was in excruciating pain and most of the time it was indescribable pain, and he was in the hospital for seventy days, and I wouldn't ask you to say, but, well, what would you take in money for seventy days in the hospital in this kind of pain? You take your seventy days in the hospital, I don't know what you would take for it, but I am going to say in this case the evidence is of such a nature that you could award $200.00 a day for that seventy days, * * *'

Thus, for this period of time counsel comes up with a figure of $14,000. Over a period of 45 years--the life expectancy of plaintiff--the value per unit-of-time is reduced. Nevertheless, counsel for plaintiff eventually computed and 'blackboarded' for the jury a total figure of $66,630 for this element of general damages.

One obvious impropriety in the argument is the question put to members of the jury, 'What would you take in money for seventy days in the hospital in this kind of pain?' In the law such technique has become known as resort to the 'Golden Rule,' a practice we cautioned against in Logan v. Pacific Intermountain Express Company, Wyo., 400 P.2d 488, 494. The point, however, has not been urged by defendant and without further comment we pass to the 'unit-of-time' phase of the argument. The propriety of this technique has not heretofore been passed upon by this court. Actually we could avoid doing so here. The contention of defendant seems to overlook the fundamental rule that a judgment will not be reversed for an error in the proceedings 'which does not affect the substantial rights of the adverse party.' Rule 72(g), Wyoming Rules of Civil Procedure. We are convinced that such rule is applicable and more will be said of this later. Nevertheless, to avoid answering the question propounded on that narrow ground wound, in our opinion, result in a disservice to the trial bench and the bar of this state. The increased utilization of the technique in recent years has become a matter of concern, locally and nationally. If as its dedicated advocates contend it is an aid to the jury in determining reasonable compensation for an injury for which the law furnishes no standard, then we ought to remove uncertainty and approve of it. Conversely, if as its equally dedicated detractors contend it is simply a device primarily designed to mislead the jury, then we ought to condemn it. For such reasons we feel duty bound to consider fully the question propounded and not to leave it for future consideration on a case-to-case basis.

Admittedly it is a close and difficult question. A review of the authorities discloses much disparity in view. So far as we can determine no discernible 'clear-cut' majority or minority rule has, as yet, emerged from the wealth of court decisions that have passed upon the matter. As a general proposition three distinct approaches to the problem have been taken.

The following jurisdictions have adopted what has become known as the 'Botta Rule,' Botta v. Brunner, 26 N.J. 82, 138 A.2d 713, 60 A.L.R.2d 1331, or its equivalent, which condemns the technique: Delaware, Hawaii, Illinois, Kansas, Missouri, New Hampshire, New Jersey, New York, North Dakota, Ohio, Pennsylvania, South Carolina, Virginia, West Virginia, and Wisconsin. 1

The following jurisdictions reject the 'Botta Rule' and follow such cases as Arnold v. Ellis, 231 Miss. 757, 97 So.2d 744, which approve of the technique: Alabama, Arkansas, Colorado, Iowa, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Mississippi, and Texas. 2

The following jurisdictions pursue a middle ground and entrust the matter to the discretion of the trial judge: Florida, Montana, Nevada, Utah, and Washington. 3

A summation of the various reasons advanced by the courts for accepting or rejecting the 'Botta Rule' will be found in Ratner v. Arrington, Fla.App., 111 So.2d 82, 88, 89. We will not undertake to repeat all of the reasons assigned but we are convinced that the rationale of those authorities adhering to the 'Botta Rule' or its equivalent is better suited to sefeguard the fundamentals of a fair trial of the factual issue of reasonable compensation for pain and suffering and does not serve unduly to restrain the prerogatives of counsel to argue all legitimate inferences that might be drawn from the evidence properly before the jury.

To us, such a conclusion seems rather inherent from the manner in which the issue is presented to the jury. A jury is usually instructed, as it was here, in the following manner:

'You are instructed that if you find from the evidence and the Court's instructions that plaintiff is entitled to recover for PAIN AND SUFFERING as an element of damage you are reminded that you cannot measure in dollars and cents the exact amount of such damage, if any, but it is for you to say, in the exercise of a sound discretion, after considering and weighing all the facts in the case, without fear and without favor and without passion and prejudice, what amount of money will reasonably compensate plaintiff for this element of damage. In your consideration of this element of damage, if otherwise proven, it is not necessary that any witness should have expressed an opinion as to the amount of such damage, but you may make such estimate from the facts and circumstances proven during the trial of this case, and by considering them in connection with your knowledge, observation and experience in life.'

The instruction correctly enunciates the legal principles involved. No witness can testify as to a per diem value for pain and suffering. There is no fixed standard or formula for measurement of the exact amount that might be fixed as reasonable compensation. Pain and suffering are not dealt with as a commodity in the marketplace. The law entrusts the matter, as it does many other things, to the common sense and good judgment of the jury. Obviously it is not an easy task. To say, however, that adherence to the law, unaided by enlightenment of a unit-of-time argument, will result in a 'blind guess' by the jury is scarcely a persuasive answer to the problem. Caley v. Manicke, 24 Ill.2d 390, 182 N.E.2d 206, 208. How can the jury function be aided by an argument which necessarily is...

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  • Beagle v. Vasold
    • United States
    • United States State Supreme Court (California)
    • August 31, 1966
    ...421, 122 S.E.2d 18; Affett v. Milwaukee & Suburban Transport Corp. (1960) 11 Wis. 604, 106 N.W.2d 274, 86 A.L.R.2d 227; Henman v. Klinger (Wyo.1966) 409 P.2d 631; see also Paley v. Brust (1964) 21 A.D.2d 758, 250 N.Y.S.2d 356; King v. Railway Express Agency, Inc. (N.D.1961) 107 N.W.2d The c......
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    ...court for the reason that it assumes evidence of pain and suffering's precise monetary value which is not in the record. In Henman v. Klinger, Wyo., 409 P.2d 631, we adopted the "Botta Rule" which rejects the unit-of-time In the instant case, plaintiff's counsel argued: ". . . And I submit ......
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    ...The law entrusts the matter, as it does many other things, to the common sense and good judgment of the jury. Henman v. Klinger, 409 P.2d 631, 634 (Wyo. 1966). [¶ 78] This Court has also The pain and suffering for which compensation may be allowed is such as is incident to the injury. The f......
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