Smith v. Gizzi, 49673
| Decision Date | 17 May 1977 |
| Docket Number | No. 49673,49673 |
| Citation | 564 P.2d 1009 |
| Parties | Mildred J. SMITH, Appellee, v. Michael Eugene GIZZI, Appellant. |
| Court | Oklahoma Supreme Court |
Dan A. Rogers, Tulsa, for appellant.
Steph & Humphrey by Charles M. Humphrey, III, Okmulgee, for appellee.
Defendant Gizzi requests that we reverse a judgment against him based on a jury verdict in favor of plaintiff Smith for damages she suffered when her car was struck from the rear by a car driven by defendant. Defendant claims trial court erred in three basic areas: (1) refusing to grant a mistrial due to prejudicial remarks of plaintiff's counsel in opening statements, (2) admitting certain bills into evidence, and (3) error in instructions. We do not agree and therefore affirm.
The actual events leading to the collision are in direct controversy but are not material to this appeal. Plaintiff's car was struck by defendant's. In her petition plaintiff prayed for damages for actual medical expenses, damage to her car, pain and suffering, permanent injuries, loss of earnings and future medical expenses for a total of $26,277.77.
The case was tried to a jury under 23 O.S.1976 Supp. §§ 11, 12, our comparative negligence statutes. The jury found defendant was 54% Negligent, plaintiff 46% Negligent and total damages sustained by plaintiff were $7,500.00. The trial court adjusted this amount according to the percentage of negligence found by the jury, and awarded judgment in favor of plaintiff for $4,050.00 plus costs. Defendant appeals.
Defendant's first allegation of error is centered on plaintiff's counsel's opening statement to the jury. Therein he referred to the opinion of a treating doctor who did not testify at trial. Defendant moved for a mistrial claiming these remarks were comments on unadmitted evidence and thus improper. The trial court overruled his motion.
Ordinarily a prevailing party's opening statement is not grounds for reversal unless adversary's substantive rights have been prejudiced. 1 The fact counsel for plaintiff may have improperly mentioned a matter as to which no evidence was introduced, does not establish that such statements were necessarily prejudicial if they were not of basic materiality so far as plaintiff's right to recover was concerned. 2 The crucial question of whether an improper opening statement substantially influenced the verdict or denied the defendant a fair trial lies within the discretion of the trial court. This court will not set aside a judgment for that reason unless it clearly appears it did influence the verdict. 3 It is not appropriate for us to act upon speculation as to whether counsel's remarks prejudiced the jurors. 4 Defendant points to mothing indicating counsel's reference to physician's opinion biased the jury or influenced the verdict. The jury was advised opening statements were not part of the evidence. Testimony referred to was testified to by another doctor. From our examination of the record we find there was sufficient evidence of pain and suffering and medical expenses for jury to find damages as it did regardless of whether or not counsel referred to nontestifying doctor's opinion.
Defendant's second claim of error relates to the admission of two bills, one from Tulsa Orthopaedic Associates, Inc. for $128.75 and the other a bill for automobile repair in the amount of $505.15. Defendant waived identification of these bills but objected to them as not having been proved. This allegation is clearly without merit. Both plaintiff and her physician testified she was treated at the Tulsa Orthopaedic Associates, Inc. for her injuries. The repair bill was dated a few days after the collision and testimony showed the portion of her car repaired was the portion damaged by the collision. There was adequate evidence of the necessity of both bills and they were properly admitted into evidence. 5
Defendant also objects to two instructions given to the jury. The first instruction advised the jury it could assess damages by taking into consideration, among other things, 'whether injuries, if any, are permanent or otherwise' and the pain and suffering 'likely to be endured in the future, if any.' Defendant claims there was no evidence to support either of these elements of future and permanent damages. Examination of the transcript reveals both plaintiff's and doctor's testimony as to permanency of the injuries and the possibility of future pain and suffering, although certainly not conclusive, did indicate that such damages were likely. The nature of her injuries was also such that a jury might infer probability of future damages from proof of the injury alone. 6 The verdict was not excessive and was amply supported by the evidence. It was not reversible error to include this instruction.
The last claim of error relates to the application of our comparative negligence statutes, 23 O.S.1976 Supp. §§ 11, 12. 7 The pertinent instruction advised the jury 'You are instructed that should you find from the evidence that the Plaintiff was negligent and that her own negligence contributed to her injury and that the Defendant was negligent and that his negligence also contributed to the Plaintiff's injury, then you must determine the degree of the Plaintiff's negligence contributing to her injury and the degree of the Defendant's negligence contributing to the Plaintiff's injury.
If you should find from the evidence that the accident was proximately caused by the negligence of both the Plaintiff and the Defendant, then you must determine the percentage of their negligence as it compares to 100%.
If you find that the degree of negligence of the Plaintiff was equal to or greater than the degree of negligence of the Defendant, then the Plaintiff is not entitled to recover.
However, if you find that the Plaintiff was negligent, but that the degree of negligence of the Plaintiff was less than that of the Defendant, then the Plaintiff is entitled to recover, but not the full amount of her damages. Plaintiff's damages, if any, should in the latter case be reduced in proportion to the degree of negligence of the Plaintiff.'
The form of the verdict was as follows:
VERDICT OF THE JURY
-------------------------------------------------------------------------------
"We the jury, upon our oath, find as follows
1. PLAINTIFF: Negligence Contributing to 46%
Cause the Occurrence ----
(Determine from 0% to 100%)
2. DEFENDANT: Negligence Contributing to 54%
Cause the Occurrence ----
(Determine from 0% to 100%)
TOTAL: Percentages of 1 and 2
Must Total Either 0% or
100%. 100%
----
Answer the following only if the percentage of plaintiff negligence is
of a lesser percentage than the negligence of the defendant.
3. We find the total amount of damages proved by the evidence sustained
by the plaintiff disregarding the percentages of negligence of the
plaintiff and defendant is the sum of $7,500.00."
----------
Defendant submits this instruction and verdict form were improper because instruction not only allowed the jury to establish the negligence of the parties, but transformed the trier of fact into a judge, by informing it as to the operation of the statute and the effect of its findings. Defendant cites Avery v. Wadlington, 186 Colo. 158, 526 P.2d 295 (1974) and the comparative negligence statutes of Colorado and Wisconsin as authority for his allegation. 8
Interpretation of Oklahoma's comparative negligence statutes requires guarded treatment in the face of our constitutional and statutory provisions limiting the type of verdict used in Oklahoma to a general verdict. 9 Apparently no other state has a constitutional provision of the same or similar effect. 10 Therefore construction of comparative negligence statutes in jurisdictions allowing special verdicts, such as Colorado, Wisconsin and Arkansas must be viewed with a critical eye.
It has been said 'the special verdict is the very cornerstone of the comparative negligence concept, and the jury does not, and should not, know the legal effect and result of its answers to the interrogatories in the special verdict.' 11 The jury under a special verdict is limited to the findings of specified facts and should not know the legal effect of its answers. Defendant is correct that in those states using a special verdict the court may create error by informing the jury of the effect of its answers. 12 However, in Oklahoma, because our verdict must be general, this rule of law has no application. The jury not only must know the legal effect...
To continue reading
Request your trial
-
Lussier v. Mau-Van Development, Inc.
...party's opening statement is not a ground for reversal unless the adversary's substantive rights have been prejudiced. Smith v. Gizzi, 564 P.2d 1009 (Okl.1977); Miller v. Hickman, 359 P.2d 172 (Okl.1961). See also Cantrell v. Superior Loan Corp., 603 S.W.2d 627 (Mo.App.1980); Schwedler v. G......
-
Beason v. I. E. Miller Servs., Inc.
...permitted. Under a general verdict, a jury must know the effect of its answers or it is not a general verdict. Smith v. Gizzi , 1977 OK 91, 564 P.2d 1009, 1013 (notes omitted).In Smith the Court explained a jury determining damages must know by the court's instructions the law applicable to......
-
Romano v. State
...discretion, direct such specific findings. Id., art. 7, § 15. This language is unique to the Oklahoma Constitution. See Smith v. Gizzi, 564 P.2d 1009, 1013 (Okl.1977). Further, the provisions of Article 7, § 15, apply to "all jury trials" in the state of Oklahoma. Therefore, we must conside......
-
Rodgers v. Higgins
...(1983).50 A verdict that leaves nothing for the judge to do but simple arithmetic is a general verdict governed by § 696.1. Gizzi, infra note 69, 564 P.2d at 1013.51 Austin, supra note 44, 404 P.2d at 1014; Little v. Employer's Casualty Co., 180 Okl. 628, 71 P.2d 687, 688 (1937); Callander ......