Olsen v. Preferred Risk Mutual Insurance Company

Utah Supreme Court

Olsen v. Preferred Risk Mutual Insurance Company

354 P.2d 575, 11 Utah 2d 23, 1960 Utah LEXIS 208

CourtUtah Supreme Court

DecidedJuly 6, 1960

Docket9179

StatusPublished

Cited by32 cases

This text of 354 P.2d 575 (Olsen v. Preferred Risk Mutual Insurance Company) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Olsen v. Preferred Risk Mutual Insurance Company, 354 P.2d 575, 11 Utah 2d 23, 1960 Utah LEXIS 208 (Utah 1960).

Pincite

Opinions

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 vour 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* [25]*25■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, [26]*26with 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.

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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 vour 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* [25]*25■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, [26]*26with 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.

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354 P.2d 575, 11 Utah 2d 23, 1960 Utah LEXIS 208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olsen-v-preferred-risk-mutual-insurance-company-utah-1960.

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