Coryell v. Town of Pinedale

THOMAS, Justice.

The singular question to be resolved in this appeal is whether it was error for the trial court to instruct the jury on the law of joint and several liability in a wrongful death case which arose on July 10, 1983. The appellant briefed a second issue questioning the propriety of an instruction with respect to the lawfulness of pursuit by a police officer, but, at oral argument, appellant advised the court that the second issue was abandoned. We conclude that the trial court did not err in giving the instruction on joint and several liability, and the judgment of the district court is affirmed.

The appellant set forth the following statement of issues in her brief:

“1. Did the trial court err in instructing the jury on the effects of joint and several liability and allowing defense counsel to comment thereon?
*884“2. Did the trial court err in instructing the jury that ‘it was lawful for Officer Frey to pursue Catón outside the corporate limits?’ ”

The appellees, Frey and Farnsworth, reiterated the appellant’s statement of issues. The Town of Pinedale, as appellee, made a counterstatement of the issues:

“I. The trial court correctly instructed the jury as to the effect of its verdict as required by W.S. § 1-1-114 (1977).
“II. The trial court correctly instructed the jury that a municipal police officer could lawfully pursue a suspect outside his corporate limits pursuant to W.S. § 31-5-1204 (1977).”

On July 10, 1983, John Coryell, the husband of the appellant, was struck and killed near the town of Pinedale by a vehicle driven by one Catón. Caton’s conviction of vehicular homicide was affirmed by this court in Caton v. State, Wyo., 709 P.2d 1260 (1985). The appellant initiated an action to recover for the wrongful death of her husband and named as defendants Ca-tón, the Town of Pinedale, James P. Frey, II and Win Farnsworth. As reflected in the court’s opinion, in Catón v. State, supra, Frey is the police officer who was chasing Catón at the time that Catón struck and killed John Coryell. The appellant’s theory was that Frey was negligent in chasing Catón at a high rate of speed. The theory against Farnsworth, who was the Pinedale chief of police when Frey was hired and at the time of Coryell’s death, was that he was negligent in the hiring and supervising of Frey. The Town of Pine-dale was included as a defendant under a theory of respondeat superior. Prior to trial, Catón settled the appellant’s claim against him, and he was dismissed from the action. In accordance with the Wyoming law relating to comparative negligence pursuant to § 1-1-109, W.S.1977, Ca-tón was included as an actor in the verdict form with respect to whom negligence should be apportioned. By the special verdict, the jury found Frey and Farnsworth were not negligent and assigned 100 percent of the negligence to Catón.

After the evidence was closed, the district court gave two instructions to the jury, over the appellant’s objections. The first instruction, which was one paragraph in a longer instruction defining generally the law of negligence, related to the law of joint and several liability. The court advised the jury:

“When the concurring negligence of two or more persons causes an injury, each person is wholly liable to the plaintiff regardless of the relative degree to which each contributes to the injury.”

The second instruction to which appellant objected advised the jury that it was lawful for Frey to pursue Catón outside the corporate limits of the Town of Pinedale. This appeal is premised upon the error of the court in giving the first instruction.

Appellant relies upon cases which addressed directly the propriety of advising a jury of the consequences of its verdict in assessing comparative negligence. The history of the instances in which this court and the legislature have addressed that issue is relatively brief. In Woodward v. Haney, Wyo., 564 P.2d 844 (1977), we held that it was improper to inform the jury of the consequences of its verdict in assessing comparative negligence. That holding was justified by the presumption that the Wyoming legislature, in adopting the comparative negligence statute from the state of Wisconsin, intended that it should be given the same construction as the courts of Wisconsin had given to the comparative negligence statute at the time of its enactment in Wyoming. In that opinion, we noted the enactment by our legislature of Ch. 10, S.L. of Wyoming 1976, which created § 1-7.7, W.S.1957, Interim Supp.1976, the last sentence of which provided “[i]n all cases the court shall inform the jury of the consequences of its verdict.” Although the balance of that statutory provision was declared unconstitutional in White v. Fisher, Wyo., 689 P.2d 102 (1984), the last sentence was not affected by that provision and remains a part of our statutory law. Chapter 188, § 1, S.L. of Wyoming 1977, appearing as § 1-1-114, W.S.1977.

*885In Johnson v. Safeway Stores, Inc., Wyo., 568 P.2d 908 (1977), this court held that the phrase “in all cases” found in § 1-1-114, W.S.1977, evinced a clear and commonly understood meaning which justified advising the jury with respect to the effect of its percentage findings of negligence in a comparative negligence case. We distinguished the decision in Woodward v. Haney, supra, holding that the statute, § 1-7.7, W.S.1957, Interim Supp. 1976, readopted in Ch. 188, § 1, S.L. of Wyoming 1977, found in § 1-1-109, W.S. 1977, had been amended by implication with the adoption of § 1-1-114, W.S.1977. After the decision in Johnson v. Safeway Stores, Inc., supra, § 1-1-109, W.S.1977, was amended to authorize the court to “[ijnform the jury of the consequences of its determination of the percentage of fault.” Chapter 24, § 1, S.L. of Wyoming 1986, now found in § 1-1-109, W.S.1977, Cum.Supp.1986.

The prior holdings of this court have been restricted to advising the jury concerning the effect of the percentages of negligence assigned by the jury to the several defendants in comparative negligence cases. Essentially, this was true of the legislative responses to this court’s decisions until the rule of joint and several liability was abolished by the legislature in 1986. Chapter 24, § 1, S.L. of Wyoming 1986, now found in § l-l-109(d), W.S.1977, Cum.Supp.1986. Prior to the effective date of that legislation, June 11,1986, the law of joint and several liability had been firmly established in Wyoming. Chandler v. Dugan, 70 Wyo. 439, 251 P.2d 580 (1952); Phelps v. Woodward Construction Company, 66 Wyo. 33, 204 P.2d 179 (1949); Hester v. Coliseum Motor Company, 41 Wyo. 345, 285 P. 781 (1930). We recognize that, as appellant has argued, we have held § 1-1-109, W.S.1977, is efficacious only in those instances in which there is at least some evidence that the plaintiff was con-tributorily negligent. Kirby Building Systems v. Mineral Explorations Company, Wyo. 704 P.2d 1266 (1985); Palmeno v. Cashen, Wyo., 627 P.2d 163 (1981). Appellant, relying upon these latter holdings, urges that § 1-1-114, W.S.1977, is limited in a similar manner and cannot be invoked to address those situations in which there is no evidence of contributory negligence by a plaintiff.

Appellant does not contend that the instruction given by the court was an erroneous statement of the law. Her sole claim is that the instruction should not have been given. Authority on the question of advising a jury with respect to joint and several liability is sparse and is found generally within the area of the propriety of advising jurors of the consequences of their findings. In Kaeo v. Davis, Hawaii, 719 P.2d 387 (1986), the Supreme Court of Hawaii considered the propriety of advising the jury about joint and several liability in the light of Rule 49(a) of the Hawaii Rules of Civil Procedure, which provides in pertinent part as follows:

“ * * * The court shall give to the jury such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue.”

That court held that in the light of its rule:

“ * * * [T]he trial court, if requested and when appropriate, should inform the jury of the possible legal consequence of a verdict apportioning negligence among joint tortfeasors. An explanation of the operation of the doctrine of joint and several liability in that situation would be consistent with our directive in HRCP 49(a) * * *.” Kaeo v. Davis, supra, 719 P.2d at 396.

By footnote, that court distinguished the application of Hawaii’s statute requiring an instruction to the jury regarding the law of comparative negligence where appropriate. The court did recognize a dichotomy between those courts holding it error to inform jurors of the consequences of their findings and those courts holding that a jury informed with respect to the legal consequences of its verdict is more likely to reach a just result.

The reasoning of the Hawaii court is persuasive with respect to the application of § 1-1-114, W.S.1977. This is particularly true in the light of our emphasis in Johnson v. Safeway Stores, Inc., supra, on *886the language “in all cases * * *.” We there said:

“ * * * [W]e hold that the legislature, by its enactment, manifested a clear intendment for its provisions to apply without exception to personal-injury actions, including those cases brought by ‘. any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, ...’ § l-7.2(a), supra.” [Now found in § 1-1-109, W.S.1977, Cum.Supp.1986.] Johnson v. Safeway Stores, Inc., supra, 568 P.2d at 912.

The words “in all cases” include cases other than those dealing solely with the issue of comparative negligence and percentage of fault, and the quoted language additionally justifies our conclusion that it was not error in this case for the court to give its instruction on the law of joint and several liability.

As a part of the first issue, the appellant argues that counsel erroneously was permitted to describe the consequences of the verdict during closing argument. The record reflects that no objection was made by appellant’s counsel to any of the final argument of opposing counsel.

“ * * * It is firmly established that improper argument of counsel cannot be raised or urged for reversal in the absence of an objection, * * *.” Joly v. Safeway Stores, Inc., Wyo., 502 P.2d 362, 364 (1972).

Other cases hold the same. Webber v. Farmer, Wyo., 410 P.2d 807 (1966); Edwards v. Harris, Wyo., 397 P.2d 87 (1964). See also Chrysler Corporation v. Todorovich, Wyo., 580 P.2d 1123 (1978).

We note, only briefly and for the purpose of explaining appellant’s abandonment of the second issue, the provisions of § 31-5-1204, W.S.1977. That statute vests a police officer with authority to arrest as though for a felony in certain misdemeanor cases including:

“(ii) Driving or being in actual physical control of a vehicle while under the influence of alcohol or any substance as prohibited by W.S. 31-5-233;
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“(vii) Willfully fleeing from or attempting to elude a police officer.”

These circumstances were present when Frey was pursuing Catón outside the city limits of Pinedale, and the situation comes within the exception to the usual limitation on a police officer’s authority to arrest attributable to his conduct in fresh pursuit of a felon or a suspected felon. Six Feathers v. State, Wyo., 611 P.2d 857 (1980); 5 Am.Jur.2d Arrest §§ 50-51 (1962); Note, Power of Peace Officers to Arrest Without Warrant in Wyoming, 7 Wyo.LJ. 100 (1953). We perceive the appellant’s abandonment of this issue as not only prudent but appropriate.

The judgment of the district court is affirmed.

URBIGKIT, J., filed a specially concurring opinion.