Johnson v. Safeway Stores, Inc.

• Decision Date: 15 September 1977
• Docket Number: No. 4752,4752
• Citation: 568 P.2d 908
• Parties: Helen Marie JOHNSON, Appellant (Plaintiff below), v. SAFEWAY STORES, INC., a Wyoming Corporation, and David Thatcher, an Individual, Appellees (Defendants below).
• Court: Wyoming Supreme Court

Page 908

568 P.2d 908

Helen Marie JOHNSON, Appellant (Plaintiff below), v. SAFEWAY STORES, INC., a Wyoming Corporation, and David Thatcher, an Individual, Appellees (Defendants below).

No. 4752.

Supreme Court of Wyoming.

Sept. 15, 1977.

Michael L. Wass, of Winter & Burgess, Casper, for appellant.

Harry L. Harris, Evanston, for appellees.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

ROSE, Justice.

The primary issue in this appeal is whether the trial court erred by reason of its refusal to give an instruction informing the jury concerning the effect of the percentage findings in its verdict under our comparative negligence statute. ¹ The accident occurred prior to the effective date of the recent legislative enactment of § 1-7.7, W.S.1957, 1976 Interim Supp., permitting such advice to the jury, but the trial was held thereafter. ² In its special verdict, the We will affirm.

jury found the plaintiff seventy percent negligent and the defendants thirty percent negligent, and awarded the plaintiff damages in the sum of $18,000. The trial court then entered judgment in favor of the defendants as required by the comparative-negligence statute.

On January 11, 1974, the plaintiff, while carrying out her duties as a frozen-food clerk for the Safeway Store located in Rock Springs, Wyoming, was struck on the back and neck by several tins of frozen eggs when a popcrate used for storage collapsed. She filed suit on April 17, 1975, against the defendants, Safeway Stores, Inc., its store manager, David Thatcher, and Leo Cardello, ³ an employee of the store, seeking damages for her injuries alleged to have been caused by the defendants' careless stacking and storage of foodstuff and Safeway's failure to provide her with a safe place to work. The defendants denied any negligence and affirmatively alleged that the plaintiff's injuries were solely the product of her own negligence. At the close of the trial, which commenced August 24, 1976, the plaintiff offered an instruction designed to inform the jury of the legal effect of its special findings. ⁴ The proffered instruction was refused by the trial court, which refusal structures the basis from which this appeal is taken.

The plaintiff-appellant urges this court to (1) give the newly-enacted § 1-7.7 a retrospective application, and (2) hold that the trial court's refusal to advise the jury on the effect of the comparative-negligence statute was erroneous for failure to comply with its terms. Before we can reach the question concerning the statute's retrospective or prospective application, we must first determine whether the statute was intended by the legislature to apply to comparative-negligence actions.

BACKGROUND

In 1973, Wyoming joined the growing list of states which, since the late 1960's, have chosen to legislatively abrogate the doctrine of contributory negligence, infused with its first breath in the English case of Butterfield v. Forrester, 11 East 60, 103 Eng.Rep. 926 (1809). The first case in Wyoming involving the construction of § 1-7.2 (supra Note 1), a Wisconsin-type comparative-negligence statute, was Woodward v. Haney, Wyo., 564 P.2d 844, decided May 18, 1977, wherein we were faced with the issue concerning the propriety of the trial court's refusal to inform the jury of the effect of its answers to the interrogatories in the special verdict. At the time of the decision, the Wyoming Legislature had added § 1-7.7 (supra, Note 2), effective May 28, 1976.

The last-mentioned section was not considered in Woodward because of its enactment after the verdict and judgment below. Instead, the decision on the merits was dependent upon ascertaining the intention of the legislature at the time our comparative-negligence statute was adopted. It was our holding " . . . that under § 1-7.2(a), unqualified by § 1-7.7, whatever effect the latter section may currently have, the intent of the Wyoming State Legislature was to adopt the Wisconsin judicial construction of the comparative negligence statute at the date of enactment, holding that it is reversible error to advise the jury in argument or by instruction of the effect of its verdict. We can find no fault with the rationale of the Wisconsin Supreme Court, then existing and of which the Wyoming Legislature was presumed to be aware. It is immaterial that the Legislature may have since changed its mind." (Footnote omitted) Woodward v. Haney, supra, 564 P.2d at page 846. (Emphasis supplied)

We made it clear that the issue having to do with the effect of § 1-7.7 on § 1-7.2 would not be decided in that case, thereby leaving the question open for consideration when appropriately raised in a future case. The time for decision-making has come.

APPLICABILITY OF SECTION 1-7.7 TO COMPARATIVE NEGLIGENCE ACTIONS

We must first examine the statute in question for the purpose of ascertaining what the legislature intended by its enactment. The source of that intent must, wherever possible, be found in the language of the statute itself. Wyoming State Treasurer v. City of Casper, Wyo., 551 P.2d 687, 697 (1976); Mahoney v. L. L. Sheep Company, 79 Wyo. 293, 333 P.2d 712, 715 (1958). In Geraud v. Schrader, Wyo., 531 P.2d 872, 878 (1975), cert. den. sub nom., Wind River Indian Education Association, Inc. v. Ward, 423 U.S. 904, 96 S.Ct. 205, 46 L.Ed.2d 134, we said:

" . . . Where the language of a statute is plain, unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to rules of statutory construction, and the court has no right to look for and impose another meaning. Druley v. Houdesheldt, 1956, 75 Wyo. 155, 160, 294 P.2d 351, 352, reh. den. 75 Wyo. 155, 296 P.2d 251. Courts will not usurp the power of the legislature by deciding what should have been said. Barber v. State Highway Comm'n, 1959, 80 Wyo. 340, 351, 342 P.2d 723, 725."

Unless it is clearly repugnant to the intention of the legislature, the words and phrases used in a statute shall be taken in their ordinary and usual sense (§ 8-18, W.S.1957, 1975 Cum.Supp.), and "when a word has a well-settled meaning in the law at the time of usage it will be so understood unless a different meaning is unmistakably intended." School Districts Nos. 2, 3, 6, 9, and 10 v. Cook, Wyo., 424 P.2d 751, 757 (1967). See also, Title Guaranty Company of Wyoming, Inc. v. Belt, Wyo., 539 P.2d 357, 359 (1975). We said in Markle v. Williamson, Wyo., 518 P.2d 621, 625:

"In Kilpatrick v. Superior Court, 105 Ariz. 413, 466 P.2d 18, 27, the Arizona Supreme Court had this to say about the role of courts and judicial tinkering:

" 'Courts are not at liberty to impose their views of the way things ought to be simply because that's what must have been intended, otherwise no statute, contract or recorded word, no matter how explicit, could be saved from judicial tinkering. Moreover, if the sense of a word is not to be taken in its usual and commonly understood meaning except under circumstances where a different meaning is clearly intended, it becomes impossible for men to mean what is said or say what they mean and purposeful communication is unattainable.' "

It is with these rules in mind that we consider the meaning and application of the last sentence in 1-7.7, i. e., "In all cases the court shall inform the jury of the consequences of its verdict." Our primary concern is with the phrase, "In all cases." Black's Law Dictionary, Revised Fourth Edition, p. 98, defines "all" to include:

" . . . Every member of individual component of; each one of used with a plural noun. In this sense, all is used generically and distributively. . . ."

"All" has also been defined as a word that " . . . is commonly understood and usually does not admit of an exception, addition, or exclusion." (Emphasis supplied) Consolidated Freightways Corp. of Del. v. Nicholas, 258 Iowa 115, 137 N.W.2d 900, 904 (1965).

The use of the phrase, "In all cases," conveys a clear and commonly-understood meaning which can be applied in a fashion consistent with the other provisions of the statute. The phrase relates to a class of civil actions which are characterized as personal injury or wrongful death and refers without exception to all cases which fall into this class. Thus, the very language of § 1-7.7 makes it clear to the practitioner that when a pleading sets forth a claim for relief based upon personal injury or wrongful death, there are three requirements which are triggered by the statute:

(1) The ad damnum clause shall not state a dollar amount as alleged damages or demand a sum as judgment other than an allegation to the effect that the damages meet jurisdictional requirements;

(3) The court shall inform the jury of the consequences of its verdict.

We hold that a mere reading of the language in § 1-7.7 evinces a clear and definite meaning. It is, therefore, not within our power to search for and impose another meaning. That would be judicial tinkering! This being the case, we hold that the legislature, by its enactment, manifested a clear intendment for its provisions to apply without exception to all personal-injury actions, including those cases brought by " . . . any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, . . . " § 1-7.2(a), supra.

Our task would now be complete were it not for the apparent conflict which arises between the construction just placed on § 1-7.7 and the construction placed on § 1-7.2(a) in Woodward v. Haney, supra. In that case, we applied the rule that when the legislature adopts a statute from another state, it is presumed to have adopted the existing construction placed upon the statute by the courts of last resort of that state as part of the law and to have intended for the same construction to apply in this state. 564 P.2d at 845. We then followed Wisconsin precedent and held that under § 1-7.2(a), it is reversible error to inform the jury by argument or...