Higgins v. Hermes

• Decision Date: 13 July 1976
• Docket Number: No. 2292,2292
• Citation: 1976 NMCA 66,552 P.2d 1227,89 N.M. 379
• Parties: Salvador HIGGINS, Plaintiff-Appellee, v. Frances M. HERMES, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1227

552 P.2d 1227

89 N.M. 379

Salvador HIGGINS, Plaintiff-Appellee, v. Frances M. HERMES, Defendant-Appellant.

No. 2292.

Court of Appeals of New Mexico.

July 13, 1976.

Certiorari Denied Aug. 4, 1976.

Frank H. Allen, Jr., Modrall, Sperling, Roehl, Harris, & Sisk, Albuquerque, for appellant

Pedro G. Rael, Zamora, Ribe & Rael, P.A., Santa Fe, for appellee.

OPINION

LOPEZ, Judge.

The plaintiff brought suit for personal injuries suffered in an accident in San Miguel County. The accident occurred when the pickup truck in which the plaintiff was a passenger was hit by the defendant's car at an intersection. The jury returned a verdict favorable to the plaintiff. The defendant appeals the trial court's denial of her motion for a new trial, or in the alternative, a remittitur, and in addition asks this Court for a new trial based on errors occurring during the trial. We discuss the points relied on for reversal seriatim.

The defendant contends that reversible error was committed when the plaintiff's counsel intensively questioned a potential juror on voir dire about her employment with an insurance company and about her investments in insurance companies. The defendant argues that the questioning was overly lengthy and thus prejudicial to the defendant. No objection was made during the course of this testimony and therefore error was not preserved. State v. James, 76 N.M. 376, 415 P.2d 350 (1966); State v. Harris, 41 N.M. 426, 70 P.2d 757 (1937); Candelaria v. Gutierrez, 30 N.M. 195, 230 P. 436 (1924). Further, at plaintiff's request, the jury was instructed that insurance was not an issue in this case, which in this case was sufficient to cure any potential prejudice resulting from the questioning. State v. Garcia, 57 N.M. 665, 262 P.2d 323 (1953); State v. Aull, 78 N.M. 607, 435 P.2d 437 (1967).

The defendant asks for a new trial on the basis that the plaintiff's counsel's references throughout the trial to religious, ethnic, and geographical factors constituted an attempt to prejudice the jury by injecting irrelevant issues. See e.g., Bulleri v. Chicago Transit Authority, 41 Ill.App.2d 95, 190 N.E.2d 476 (1963); Cooke-Teague Motor Co. v. Johnson, 50 S.W.2d 399 (Tex.Civ.App.1932). The defendant notes that no objections were made to these comments, nor was the judge requested to caution the jury. As a matter of trial tactics, the prejudice resulting from an objection is argued to be potentially greater than that resulting from the offensive comments themselves, so that at least one court has held that an objection need not be made. Smerke v. Office Equipment Co., 138 Tex. 236, 158 S.W.2d 302 (1941). But see, Otis Elevator Company v. Wood, 436 S.W.2d 324 (Tex.1968). In this case the allegedly improper comments occurred during the course of the entire trial. The trial court should have been alerted to the problem, and given an opportunity to admonish counsel if he deemed an admonishment necessary. It is true that the courts have indicated that improper remarks could be the basis for reversal even where no objection was made (Griego v. Conwell, 54 N.M. 287, 222 P.2d 606 (1950)), and the plain error rule would permit a similar result. We do not think the result in this case could be characterized as a 'miscarriage of justice'. State v. Marquez, 87 N.M. 57, 529 P.2d 283 (Ct App.1974). See, Apodaca v. United States Fidelity and Guaranty Co., 78 N.M. 501, 433 P.2d 86 (1967).

In his third point the defendant contends that the trial court erred in permitting the testimony of Dr. John Salazar, a clinical psychologist. The basis of this objection was twofold: (1) that the complaint did not request compensation for psychological damages which must be specially pled (Rule 9(g), § 21--1--1(9)(g), N.M.S.A.1953 (Repl.Vol. 4), and (2) that Dr. Salazar's testimony was based on out-of-court statements.

The damage paragraph in the complaint reads as follows:

'As a direct and proximate result of the negligent and grossly negligent acts of the Defendant, as aforesaid, the Plaintiff suffered permanent and disabling back injuries, suffered excruciating pain and agony which continues to this date and is expected to continue indefinitely, and loss of wages, all to his damage in the sum of $250,000.00.'

Dr. Salazar described the plaintiff's state of mind, noting that the accident had produced depression, concern, and mental anguish. He then related this poor self-concept with a resulting psychological disability which would affect the plaintiff in many aspects of his life, including his ability to work successfully. Dr. Salazar evidenced a belief that the psychological damage could not be separated from the physical injury, so that any discussion of disability must take account of both factors.

It is not disputed that under New Mexico law damages can be recovered for mental pain and suffering as a consequence of physical injuries. Rutledge v. Johnson, 81 N.M. 217, 465 P.2d 274 (1970). The complaint asked recovery for 'pain' and 'agony', and the description the witness gave of the plaintiff's condition was encompassed by these terms. Under the concept 'pain and suffering' recovery has been allowed for physical pain, nervousness, grief, anxiety, worry and shock. Capelouto v. Kaiser Foundation Hospitals, 7 Cal.3d 889, 103 Cal.Rptr. 856, 500 P.2d 880 (1972). Even if the term 'pain and agony' is not understood to refer to the mental conditions described by the witness, there is no necessity to specially plead these conditions. The test for whether these damages must be specially pled is derived from the necessity to alert the defendant as to what he must defend against. Thus '(g)eneral damages are such as naturally and necessarily flow from the wrong act, while special damages are such as naturally, but do not necessarily flow from it.' Mobile City Lines, Inc. v. Proctor, 272 Ala. 217, 130 So.2d 388 (1961). Where physical injuries are pled, it is generally agreed that mental anguish will result. Thacker v. Ward, 263 N.C. 594, 140 S.E.2d 23 (1965); Mobile City Lines, Inc. v. Proctor, supra. See, 22 Am.Jur.2d, Damages § 283 (1965).

The doctor's testimony as to psychological disability did not go outside the pleadings. The pleadings contain an allegation of disability, and ask damages for the loss of earnings and wage earning capacity. Dr. Salazar explained the relation between the psychological damage incurred by the plaintiff and the ability to work. Thus, the contested testimony was relevant to the issue of disability and properly admitted.

The second issue raised is that the doctor assumed facts not in evidence in preparing his testimony. The doctor appears to have relied on medical reports prepared by other doctors. The objection that these reports were an impermissible basis for his opinion because they were not in evidence, is not, in itself, a sufficient objection. There was no objection that these reports were not of the sort reasonably relied on by such experts. Section 20--4--703, N.M.S.A.1953 (Repl.Vol. 4, Supp.1975); Herrera v. Springer Corporation, 89 N.M. 45, 546 P.2d 1202 (Ct.App.1976).

The defendant argues that the trial court erred in permitting the plaintiff to make a 'per diem' argument to the jury. During closing argument, the plaintiff's attorney told the jury that he was not going to ask them to award the amount asked in his complaint, which was $250,000.00. Instead, he continued, he thought that at this stage of the trial, it appeared that $62,000.00 would be a fair amount. He elaborated:

'Now, this is a big figure. It sounds big. And I questioned you in detail concerning the figure and amount of money that is large. Here we have already passed from the date of the accident, January 24, 1974, to the date of his birthday, April 22, 1975--434 days. He is to live another 38.51 years and we're looking ahead at 13,935 days--I missed it, a total of 14,396 days.'

The amount returned by the jury for the plaintiff was $62,000.00.

The defendant argues that this form of argument was an impermissible 'per diem' argument. In the typical per diem argument, counsel specifies a daily, or even hourly, amount to compensate the plaintiff. The number of days the condition will continue is also supplied as is the final sum. The argument above differs from the traditional only in that the division was not done for the jury.

The New Mexico courts have never addressed the issue of whether per diem arguments should be allowed or prohibited. Of the state courts which have considered the issue the majority have concluded that per diem arguments should be allowed. Beagle v. Vasold, 65 Cal.2d 166, 53 Cal.Rptr. 129, 417 P.2d 673 (1966).

The landmark case presenting the arguments against per diem appeals is Botta v. Brunner, 26 N.J. 82, 138 A.2d 713, 60 A.L.R.2d 1331 (1958). The definitive exposition of the opposite view is found in Beagle v. Vasold, supra. The primary objection of the New Jersey Supreme Court to this form of argument appears to be that allowing an attorney to suggest a specific sum has the effect of permitting the attorney to testify, since there is no foundation in the evidence for a specific sum. We agree with the response of the California Supreme Court to this reasoning: the jury is permitted to infer a specific monetary sum from the evidence, because it is assumed that the evidence of the suffering and pain undergone by the plaintiff forms a sufficient foundation for the award of a specific monetary sum. The attorney, who traditionally discusses the inferences from the evidence, should not be restricted from comment on this inference. See, Comment, 60 Mich.L.Rev. 612, 621--624 (1962).

The second theory under which objections to per diem arguments are made is that juries tend to grasp at any definite sum which might be put before them, and that excessive verdicts can thereby result. This argument is given special force in this case where the jury does return a verdict for the exact amount requested by ...