Rodrigue v. Hausman

• Decision Date: 05 February 1974
• Docket Number: No. 73--186,73--186
• Citation: 33 Colo.App. 305,519 P.2d 1216
• Parties: Marie RODRIGUE, By Dorothy Rodrigue and E. A. Rodrige, Plaintiffs-Appellants, v. Thomas HAUSMAN, Defendant-Appellee. . II
• Court: Colorado Court of Appeals

Page 1216

519 P.2d 1216

33 Colo.App. 305

Marie RODRIGUE, By Dorothy Rodrigue and E. A. Rodrige Plaintiffs-Appellants, v. Thomas HAUSMAN, Defendant-Appellee.

No. 73--186.

Colorado Court of Appeals, Div. II.

Feb. 5, 1974.

Lee, Bryans, Kelly & Stansfield, Richard W. Bryans, Denver, Joseph C. French, Boulder, for plaintiffs-appellants.

Zarlengo, Mott & Zarlengo, David C. Scheibach, Albert E. Zarlengo, Jr., Denver, for defendant-appellee.

RULAND, Judge.

In this appeal plaintiff Marie Rodrigue alleges as error a ruling by the trial court which restricted closing arguments in a negligence case tried to a jury.

Plaintiff claimed damages for and presented evidence to show injuries consisting of multiple face and head lacerations, concussion, pain and suffering, and permanent facial scarring received in an automobile collision with defendant. Plaintiff appeals from the judgment entered on the jury's verdict for plaintiff in the amount of $2,200. We recverse.

Following presentation of evidence and prior to closing arguments, the trial court ruled that counsel would not be allowed to refer to specific dollar amounts claimed by plaintiff for pain and suffering and permanent injury by reason of scarring. The trial court announced two reasons for its ruling. First, although our Supreme Court in Newbury v. Vogel, 151 Colo. 520, 379 P.2d 811, held that counsel could suggest a per diem amount to the jury for pain and suffering in a personal injury case, the trial court interpreted that decision to be limited to situations in which there is a jury instruction which sets forth the total amount claimed by plaintiff in his complaint. Since it is no longer appropriate for an instruction to contain any reference to the damages requested in the complaint, see Colorado Jury Instructions (1973 Supp.) 2:1 (Notes on Use) and 6:1 (Notes on Use), the trial court concluded that the per diem argument authorized by Newbury is no longer permissible. We disagree.

Although under prior case law it was considered proper to include in the jury instructions the total amount of damages requested by a plaintiff, See Liber v. Flor, 160 Colo. 7, 415 P.2d 332, this was only one factor which persuaded the Supreme Court in Newbury to permit the per diem arguments. Another reason was that:

'The jury must reach its verdict by the process of reasoning and upon the inferences to be drawn from the facts before it. That pain and suffering will continue permanently and that the plaintiff has...