Wheeler v. Bagley
| Citation | 575 N.W.2d 616,254 Neb. 232 |
| Decision Date | 20 March 1998 |
| Docket Number | No. S-96-662,S-96-662 |
| Parties | Barbara L. WHEELER, Appellee, v. Darrel BAGLEY, Appellant. |
| Court | Supreme Court of Nebraska |
Syllabus by the Court
1. Motions for New Trial: Appeal and Error. A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion.
2. Judgments: Appeal and Error. When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling.
3. Jury Instructions: Pleadings: Evidence. A trial court, whether requested to do so or not, has a duty to instruct the jury on issues presented by the pleadings and the evidence.
4. Jury Instructions: Appeal and Error. It is the duty of the trial court to instruct on the proper law of the case, and failure to do so constitutes prejudicial error.
5. Motions for New Trial: Jury Instructions: Appeal and Error. Ordinarily, the failure to object to instructions when submitted to counsel for review will preclude raising an objection thereafter. However, that does not prevent the trial judge from correcting his or her instruction error by sustaining a motion for a new trial.
6. Statutes. It is not within the province of a court to read a meaning into a statute that is not there, or to read anything direct and plain out of a statute.
7. Actions: Negligence: Jury Instructions: Appeal and Error. In those cases where the cause of action accrued on or after February 8, 1992, and in which contributory negligence is a defense, it is prejudicial error for the trial court to not properly instruct a jury on the effects of its allocation of negligence in accordance with Neb.Rev.Stat. § 25-21,185.09 (Reissue 1995).
Leland K. Kovarik, of Holtorf, Kovarik, Ellison & Mathis, P.C., Gering, for appellant.
Michael J. Javoronok, of Michael J. Javoronok Law Firm, Gering, for appellee.
Barbara L. Wheeler brought a negligence action against Darrel Bagley for injuries she sustained while working as a ranch employee for Bagley. After a trial, the jury returned a verdict that found Wheeler to be 49 percent negligent and Bagley to be 51 percent negligent with respect to Wheeler's injuries, and valued Wheeler's damages at $40,000. After the trial court entered judgment in favor of Wheeler, Wheeler filed a motion for new trial on the basis that the jury had not been instructed as to the effect of the allocation of negligence, as required by Neb.Rev.Stat. § 25-21,185.09 (Reissue 1995). The trial court sustained Wheeler's motion and ordered a new trial. Bagley timely appealed. Because we determine that the jury was not properly instructed on the effect of the allocation of negligence, as required by § 25-21,185.09, we affirm the order and remand the cause to the district court for a new trial.
Wheeler was injured on November 15, 1994, when she attempted to tag a cow while working as a ranch hand for Bagley. Wheeler brought a negligence action against Bagley, alleging that her injuries were caused because Bagley failed to (1) have the cow properly restrained, (2) provide proper equipment to restrain the cow, and (3) provide the proper number of employees to properly restrain the cow. Bagley, in turn, claimed Wheeler was contributorily negligent by (1) failing to maintain a proper lookout, (2) placing her head in close proximity to the head of the cow, and (3) failing to make certain that the head of the cow was restrained before placing her head in a position such that she could be struck by the cow if the cow moved its head.
At trial, an instruction conference was held before the case was submitted to the jury, and neither party had any objections to the instructions adopted by the court which are relevant to this appeal. The trial court's verdict form No. 3, set forth below, which was to be used by the jury if it found that both the plaintiff and the defendant had met their respective burdens of proof regarding negligence and contributory negligence, was taken from NJI2d Civ. 5.05.
The jury returned a verdict in favor of Wheeler on verdict form No. 3, completed as follows:
We the jury find that both the plaintiff and the defendant have met their burdens of proof.
LIST OF PERCENTAGES:
What percent of the negligence was Barbara Wheeler's?
49%
What percent of the negligence was Darrel Bagley's?
51%
The total negligence must add up to 100%
TOTAL = 100%
If the negligence of the plaintiff equals 50% or more, then you must return a verdict for the defendant: date and sign a verdict for the defendant and return it to the court.
If the negligence of the plaintiff is less than 50%, then you must return a verdict for the plaintiff and, using Instruction No. 10, you must determine the amount of damage suffered by plaintiff, and enter that figure.
Plaintiff's damages, figured pursuant to Instruction No. 10, are $40,000.
DATED: 4-9-96 [.]
The verdict form is reproduced in the trial court's journal entry dated April 9, 1996, and filed on April 19, which journalizes the trial proceedings and concludes: "The court accepted the verdict and rendered judgment thereon." The journal entry does not state the amount of the judgment that was rendered as a result of the jury verdict.
After the trial, Wheeler filed a motion seeking a new trial on the basis that the court had failed to instruct the jury on the effects of its allocation of negligence, as required by § 25-21,185.09. A hearing on the motion for new trial was held. At the hearing, Wheeler's attorney argued that the jury verdict form should be interpreted to mean that the verdict was $40,000. Bagley's attorney, on the other hand, argued that the verdict form should be interpreted to mean that Wheeler's total damages were $40,000 and that amount should be reduced by the percentage of her negligence, leaving a verdict in the amount of $20,400. The trial court declined to state what it believed the verdict amount to be and, instead, granted the motion for new trial because the jury was not instructed as required by the statute. The trial judge candidly noted that this was the court's and the plaintiff's attorney's first case under the new allocation statute. The trial court concluded that the NJI2d Civ. 5.05 verdict form was not adequate to fulfill the statutory requirement and that therefore, it had no choice but to sustain the motion for new trial. Bagley timely appealed.
Bagley asserts that the trial court erred in determining that, under the facts and circumstances of this case, Wheeler was entitled to a new trial on the basis that the trial court failed to properly instruct the jury with respect to the effects of its allocation of negligence.
A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion. Abboud v. Papio-Missouri River NRD, 253 Neb. 514, 571 N.W.2d 302 (1997); Ray Tucker & Sons v. GTE Directories Sales Corp., 253 Neb. 458, 571 N.W.2d 64 (1997).
When reviewing a question of law, however, an appellate court reaches a conclusion independent of the lower court's ruling. State ex rel. Garvey v. County Bd. of Comm., 253 Neb. 694, 573 N.W.2d 747 (1998); Johnson v. School Dist. of Millard, 253 Neb. 634, 573 N.W.2d 116 (1998).
It is well established that a trial court, whether requested to do so or not, has a duty to instruct the jury on issues presented by the pleadings and the evidence. McLaughlin v. Hellbusch, 251 Neb. 389, 557 N.W.2d 657 (1997); Long v. Hacker, 246 Neb. 547, 520 N.W.2d 195 (1994). Moreover, it is the duty of the trial court to instruct on the proper law of the case, and failure to do so constitutes prejudicial error. Heye Farms, Inc. v. State, 251 Neb. 639, 558 N.W.2d 306 (1997); Ketteler v. Daniel, 251 Neb. 287, 556 N.W.2d 623 (1996).
Bagley first contends that because Wheeler did not object to the court's jury instructions at the time of the instruction conference, she cannot raise an error in the instructions on appeal. Ordinarily, the failure to object to instructions when submitted to counsel for review will preclude raising an objection thereafter. However, that does not prevent the trial judge from correcting his or her instruction error by sustaining a motion for a new trial. Omaha Mining Co. v. First Nat. Bank, 226 Neb. 743, 415 N.W.2d 111 (1987); McCready v. Al Eighmy Dodge, 197 Neb. 684, 250 N.W.2d 640 (1977).
The trial court found that its instructions to the jury did not satisfy the requirements of § 25-21,185.09. Section 25-21,185.09 applies to all cases, including the instant case, where the cause of action accrued on or after February 8, 1992, and in which contributory negligence is a defense. The statute states:
Any contributory negligence chargeable to the claimant shall diminish proportionately the amount awarded as damages for an injury attributable to the claimant's contributory negligence but shall not bar recovery, except that if the contributory negligence of the claimant is equal to or greater than the total negligence of all persons against whom recovery is sought, the claimant shall be totally barred from recovery. The jury shall be instructed on the effects of the allocation of negligence.
(Emphasis supplied.) § 25-21,185.09.
The statute, which was enacted as part of the comparative negligence statutory scheme in 1992, mandates that juries that have been instructed on contributory negligence as a defense must also be instructed on the ultimate effect of their allocation of negligence to each party. Some background is helpful to place into context the legislative mandate of § 25-21,185.09 to instruct juries "on the effects of the allocation of negligence."
In contrast to the requirement in § 25-21,185.09 that the jury...
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