Pickering v. Industria Masina I Traktora

• Decision Date: 06 May 1999
• Docket Number: No. 97-CA-00034-SCT.,97-CA-00034-SCT.
• Citation: 740 So.2d 836
• Parties: Pat PICKERING v. INDUSTRIA MASINA I TRAKTORA (IMT).
• Court: Mississippi Supreme Court

740 So.2d 836

Pat PICKERING v. INDUSTRIA MASINA I TRAKTORA (IMT).

No. 97-CA-00034-SCT.

Supreme Court of Mississippi.

May 6, 1999.

David Ringer, Florence, Attorney for Appellant.

Barry H. Powell, Jackson, Attorney for Appellee.

BEFORE PRATHER, C.J., SMITH AND MILLS, JJ.

SMITH, Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. Dissatisfied with a $12,650 judgment against a tractor manufacturer in this products liability action, Pat Pickering, argues that the lower court erred in crediting the manufacturer with the amount paid to the plaintiff by two other defendants who settled before trial and also erred in further reducing the balance by 75% to reflect the jury's finding that the plaintiff was responsible for 75% of his injuries. In addition, Pickering argues that the lower court erred in instructing the jury, in failing to grant a default judgment against the manufacturer, and in failing to grant an additur. Finding no reversible error, we affirm.

FACTS

¶ 2. In October, 1988, appellant Pat Pickering purchased a tractor manufactured by appellee Industrija Masina I Traktora (IMT) and sold by Garner Ford Tractor Company. Pickering primarily used the tractor in box blade work and minimally in bushhogging and tilling.

¶ 3. In January, 1989, the tractor's clutch hung up while Pickering was using the tractor. Pickering turned the motor off and unstuck the clutch. In February 1989, the clutch on the IMT tractor hung again while he was operating the tractor. Pickering got down off the tractor, with motor running and the tractor in gear, to pry the clutch loose. Once he pried the clutch loose, the tractor ran over him and broke his left hip.

¶ 4. Pickering filed suit in Simpson County Circuit Court against IMT, Garner Ford, and Robison & Woods Tractor Co., Inc., after being injured in the accident involving the IMT tractor. Prior to trial, Pickering settled with Garner Ford and Robison & Woods for $40,000. At trial the Circuit Clerk announced the case to the jury as Pat Pickering v. IMT, Garner Ford and Robinson & Woods Tractor Co., Inc.. The case was tried to the jury against IMT only and submitted to the jury on a special verdict. The jury found that the IMT tractor was unreasonably dangerous, that any misuse by Pickering was foreseeable to IMT, that Pickering's damages were $90,600, prior to any reduction based on fault, and that Pickering was 75% at fault for his injuries. Following the formula specified in McBride v. Chevron U.S.A., 673 So.2d 372 (Miss.1996), the circuit court subtracted the amount of Pickering's settlement with Garner Ford and Robison & Woods, $40,000, from the $90,6000 total producing a balance of $50,600. The lower court then apportioned the $50,600 based on the jury's fault finding that IMT was responsible for 25% of that figure: $12,650. Accordingly, the circuit court entered judgment in favor of Pickering and against IMT for $12,650. Pickering then moved for an additur of $77,950 to restore the full $90,600 damage figure found by the jury. When the trial court denied that motion, Pickering appealed to this Court.

¶ 5. Pickering raises the following issues on appeal:

I. WHETHER THE TRIAL COURT ERRED IN GRANTING THE DEFENDANT'S MOTION FOR CREDIT FOR SETTLEMENT BY CO-DEFENDANTS WHERE THE JURY WAS AWARE THAT THERE HAD BEEN TWO DEFENDANTS IN THE CASE, AND THAT NOW THERE WAS ONLY ONE DEFENDANT IN THE CASE.

II. WHETHER THE PLAINTIFFS WERE ENTITLED TO A PEREMPTORY INSTRUCTION ON FAULT GIVEN THAT THE PLAINTIFF'S EXPERT WAS THE ONLY CREDENTIALED WITNESS THAT RENDERED AN OPINION ON FAULT, WHICH OPINION WAS UNREFUTED BY THE DEFENDANT.

III. WHETHER PLAINTIFF WAS ENTITLED TO AN INSTRUCTION ON ABSOLUTE LIABILITY GIVEN THAT THE PLAINTIFF'S BASIS FOR RECOVERY WAS THAT HIS INJURIES WERE CAUSED BY THE DEFECTIVE AND UNREASONABLY DANGEROUS CONDITION OF THE IMT TRACTOR.

IV. WHETHER THE TRIAL COURT ERRED IN GIVING PROPOSED JURY INSTRUCTION NO. D-9.

V. WHETHER THE TRIAL COURT ERRED IN GIVING PROPOSED JURY INSTRUCTION NO. D-7.

VI. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE INTERROGATORY FORM OF THE VERDICT WHICH FAILED TO SET OUT EVERY ELEMENT OF THE ACTION BEFORE THE JURY.

VII. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GIVE PROPOSED JURY INSTRUCTION NO. P-6.

VIII. WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT THE PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT IN LIGHT OF THE FACT THAT THE DEFENDANT WAS SANCTIONED BY THE UNITED STATES.

IX. WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT THE PLAINTIFF'S MOTION FOR ADDITUR.

LEGAL ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN GRANTING THE DEFENDANT'S

MOTION FOR CREDIT OF SETTLEMENT BY CO-DEFENDANTS WHERE THE JURY WAS AWARE THAT THERE HAD BEEN TWO DEFENDANTS IN THE CASE, AND THAT NOW THERE WAS ONLY ONE DEFENDANT IN THE CASE.

¶ 6. Pickering contends that the $40,000 he received from the settling co-defendants should not have been subtracted from the amount that IMT, the nonsettling defendant, owed. Pickering relies on Whittley v. City of Meridian, 530 So.2d 1341, 1346 (Miss.1988) for the proposition that there are two acceptable practices for determining damages in the situation where co-defendants are involved and one co-defendant has settled with the plaintiff. Under the first procedure the defendant, is allowed "to show, either by the plaintiff or proper witnesses or evidence, that a settlement has been made with one or more of the defendants," without disclosing the amount of the settlement to the jury. The second acceptable procedure allows the parties to stipulate, outside of the presence of the jury, that a settlement has been made by one or more of the defendants and the amount of the settlement. The jury would not be informed of the settlement or the payment, and if a verdict were returned for the plaintiff, the trial judge would reduce the amount awarded by the jury by the amount of the settlement by the other defendants.

¶ 7. Pickering asserts that the Mississippi Supreme Court has recognized that the second procedure is preferable. Pickering asserts that as soon as the jury became aware of the fact that there were other defendants in the case, the court should have informed the jury why the other defendants were not present. Further he contends that the jury was to be informed about the other defendants in the suit, but not of the settlement with them.

¶ 8. Pickering argues that upon calling the docket, the Clerk announced the litigants, including the two settling defendants. At no time were the jurors given a Whittley instruction. The lower court did not instruct the jury as to who the other parties were, what role they played in the case, that they had made a settlement with the plaintiff, or that any amount awarded by the jury would be reduced by the amount paid by the settling defendants. Pickering argues that when the trial court reduced the amount of damages that the jury awarded to appellant by the amount of the settlements made by the other parties it went against both what the jury was trying to accomplish by its $90,600 award, rewarded in accordance with their instructions, and the basis for the holding in Whittley.

¶ 9. Finally Pickering argues that since the procedures for determining the damages due to a plaintiff were not followed, Pickering's judgment should not be reduced by the amount of the settlement by Pickering with the prior co-defendants.

¶ 10. IMT asserts that Pickering's only basis for arguing to this Court that no credit should have been given for the prior settlement of the co-defendants is that, in announcing this case, the Circuit Clerk inadvertently mentioned one of the settling co-defendants as still a party in the case. IMT asserts that no objection was made by Pickering on the record; there was no request for a mistrial; there was no request by the Pickering for the court to instruct the jury in any manner whatsoever as to this inadvertent announcement. Without an objection IMT asserts that Pickering has therefore waived any objection. Further IMT argues that if Pickering's counsel felt aggrieved by the Circuit Clerk's inadvertent announcement of a co-defendant to the jury, counsel could have at any time informed the jury that Pickering had settled with the co-defendant. With this, IMT contends that the trial court correctly calculated and granted credit for the settlement with the co-defendants. ¶ 11. This Court has announced an acceptable procedure to be used to determine the damages due a plaintiff where co-defendants are involved and one co-defendant has settled with the plaintiff. That procedure allows the jury to be informed of the existence of a settlement but not the amount of settlement (if settlement occurs after the trial begins then it will be necessary to inform the jury why the defendants are no longer present). Whittley v. City of Meridian, 530 So.2d 1341, 1346 (Miss. 1988). If the jury returns a judgment in excess of the settlement the judge can simply adjust the judgment by the amount of the settlement. Id.

¶ 12. Here, the Circuit Clerk called the case as Pat Pickering v. IMT, a Foreign Corporation, and Garner Ford Tractor Company, a Mississippi Corporation. However, the trial judge announced the case as Pat Pickering v. IMT, a Foreign Corporation. Pickering made no objection to the Circuit Clerk's error.

¶ 13. There is no evidence in the record that the parties stipulated, outside the presence of the jury that a settlement had been made. However, the jury was not informed of the settlement, and the verdict was in favor of the plaintiff. The trial judge then reduced the amount awarded by the jury by the amount of the settlement by the other defendants. This is clearly the correct procedure pursuant to this Court's decision in Wood v. Walley, 352 So.2d 1083, 1085 (Miss.1977), and Whittley v. City of Meridian, 530 So.2d 1341, 1346 (Miss.1988) for cases arising prior to the effective date of Miss.Code Ann. § 85-5-7. The cause of action in the present case arose prior to the ...