Olsen v. Preferred Risk Mut. Ins. Co.

• Citation: 11 Utah 2d 23,354 P.2d 575
• Decision Date: 06 July 1960
• Docket Number: No. 9179,9179
• Parties: d 23 Louise OLSEN, Plaintiff and Respondent, v. PREFERRED RISK MUTUAL INSURANCE COMPANY, an Iowa corporation, Defendant and Appellant.
• Court: Supreme Court of Utah

Page 575

354 P.2d 575

11 Utah 2d 23

Louise OLSEN, Plaintiff and Respondent, v. PREFERRED RISK MUTUAL INSURANCE COMPANY, an Iowa

corporation, Defendant and Appellant.

No. 9179.

Supreme Court of Utah.

July 6, 1960.

Kipp & Charlier, Salt Lake City, for appellant.

Dale L. Browning, Calvin Gould, Ogden, for respondent.

HENRIOD, Justice.

Appeal from a judgment on a verdict for plaintiff. Affirmed, with costs to plaintiff.

The action arose out of an insurance policy issued by defendant providing a $5,000 maximum payment for injuries suffered by the assured on the occasion of a collision by an uninsured driver of a car.

Plaintiff drove alongside a curb to fix a flat tire. A motorist, who appeared to have been drinking, stopped his car behind plaintiff's. Plaintiff told him she had a flat and proceeded to get tools from the trunk compartment, when he ran into her, backed up and drove away.

Defendant urges that 1) the court erred in concluding that plaintiff was not guilty of contributory negligence as a matter of law, with which contention we disagree and 2) that plaintiff's counsel committed prejudicial error in presenting a mathematical per diem formula to the jury for its consideration in determining damages for pain and suffering.

In arguing to the jury, counsel placed figures on a blackboard in support of the following statements, all of which defendant urges was prejudicial:

'For that one month's time how much would you take if your husband or your wife had been injured like that? Would you take $1000? Would you take $2000? Suppose we only called that worth $1000 or just $500. * * * Suppose we say that's only worth $500 for the first month. It's been about a year and a half since the accident happened. How much would you say that year is worth? And she has to live with it day by day. This case will be out of most of your minds in a month or so, but every day she has this problem. Every day she can't walk on that leg good. Every day she'll see those little children having to do things she should be doing herself. Every day she feels the pain in the leg. How much is that worth? Will you take $10 a day? Would you take $5 a day? * * * Now, if we figured it out that would be 5 times 365, or $1,825 per year. * * * And what has she got to look forward to beyond that? * * * She's still got the injury. That might be 10 years. * * * If we ask for another year and a half, 3 years total, that would be 3 times this $1825, or $5,475. But you can't do that. The policy is only $5,000. * * *'

We need not determine whether the argument quoted above should have been complemented by a cautionary instruction, since the maximum coverage under the policy obviously was below an amount the jury reasonably could have assessed for general physical damages, irrespective of damages for pain and suffering,--substantial evidence pointing up a one-third permanent impairment and loss of use of the leg, because of injuries suffered below the knee and up to the hip.

Cases abound, pro and con, as to the arithmetic per diem formula argument anent pain and suffering. New Jersey's Supreme Court learnedly argues the case for suppression of such argument, ¹ while an antithetical position as ably is urged in a Florida appellate tribunal. ² Our sister state, Nevada, whose statute requires reading to the jury the complaint, including the prayer and amount claimed, has sanctioned such a formula and argument because of the statute. ³ Though we have no similar statute, our trial courts customarily have roughed out the issues urged by the litigants and apprised the veniremen of the maximum amount recoverable under the pleadings, which practice lends some support to the Nevada conclusion.

Nonetheless, we believe and hold that a sensible and fair rule is to leave the propriety of counsel's use of such argument to the sound discretion of the trial court, with a cautionary instruction that if permitted such presentation is but lawyer talk, not to be considered as evidence or as a substitute therefor. Absent such instruction, the practitioner runs the risk of a more piercing and less sympathetic review on appeal as to the argument's prejudicial aspect, since the jury has not had the benefit of the trial court's admonition to treat the argument for what it is, and not for what it might be considered by those uninstructed as to its function.

McDONOUGH and CALLISTER, JJ., concur.

CROCKETT, Chief Justice (concurring specially).

I concur in affirming the judgment. But I am not entirely in accord with the treatment of the contention that the argument of plaintiff's counsel, suggesting that they consider pain and suffering at a certain money value was prejudicial error.

It is appreciated that there is a difference of view among respected authorities concerning this question. However, it appears to the writer that the majority and the later and better considered decisions favor permitting such an argument. ¹ Courts which have expressed themselves as opposing it are the Eighth Circuit Court of Appeals (Nebraska), ² Minnesota, ³ Delaware, ⁴ and New Jersey. ⁵ Of those, Minnesota seems to have changed its position in later cases by allowing the use of such an argument for what the court terms 'purely illustrative' purposes. ⁶

The case which may be regarded as the leading one against allowing such an argument is that of Botta v. Brunner ⁷ in which the New Jersey court discusses the problem and holds that such an argument to the jury constitutes an unwarranted intrusion by counsel into its domain. From our view-point it is significant that this case is decided under the New Jersey rule that neither court nor counsel are allowed to refer to the damages clause of the complaint, which as mentioned later, is different from our own practice.

Supporting generally the view that such an argument is permissible are the Sixth Circuit Court of Appeals (Ohio), ⁸ Mississippi, ⁹ ] Texas, ¹⁰ Florida, ¹¹ Nevada, ¹² and Washington. ¹³

Chief Judge Carroll of the Third District Court of Appeal of Florida in the case of Ratner v. Arrington has written an excellent opinion approving such an argument. In it he reviews the cases and the periodical literature on this subject and summarizes the arguments in favor of permitting counsel to argue such a formula in regard to the amount to be awarded for pain and suffering, and also sets forth the reasons supporting the propriety of allowing counsel to make such an argument, which in my opinion are more cogent and persuasive. ¹⁴

Of particular interest to us is the recent case of Johnson v. Brown ¹⁵ which sets forth the Nevada position approving the use of such an argument. It is proper to note that Nevada has a statute, Sec. 16.090, N.R.S., providing for the reading of the pleadings to the jury, which thus advises them the amount sued for. But the effect of doing so is not materially different from our own practice in regard to the point in question. We do not approve of reading the pleadings to the jury, preferring a summary statement of the issues. But, it is invariable practice in Utah courts, so far as the writer knows, to advise the jury the amount the plaintiffs sues for and to instruct them that if the verdict is for the plaintiff, the amount awarded should not exceed the amount prayed for in the complaint, and further, that it should not be taken as any indication as to the amount he may be entitled to recover. ¹⁶

A recent case on the subject is that of Jones v. Hogan ¹⁷ in which the Supreme Court of Washington analyzed the problem and held such an argument was not error. It took occasion to note that the trial court should have discretion to limit such an argument if it seemed to be intruding into the province of the jury, and stressed that there should be an admonitory instruction that the...