NO. 89-311
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
JULIE DeCELLES,
Plaintiff and Appellant,
STATE OF MONTANA, acting through
the Department of Highways; and
RAY ELDEN EDER, an individual,
Defendants and Respondents.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Gordon Bennett Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Ronald F. Waterman, argued; Gough, Shanahan, Johnson
& Waterman; Helena, Montana
Ron L. Lee, Flagstaff, Arizona
For Respondent:
John H. Maynard, Department of Administration,
Helena, Montana
Sherman V. Lohn & Steven S. Carey, argued;
Garlington, Lohn & Robinson, Missoula, Montana
Submitted: April 6, 1990
Decided: July 11, 1990
Filed:
Justice R. C. McDonough delivered the Opinion of the Court.
The plaintiff Julie DeCelles appeals the order of Montana
First Judicial District Court, Lewis and Clark County, denying her
motion for new trial on the grounds that no prejudice resulted from
the Court instructing the jury regarding the effects of joint and
several liability. We affirm.
Appellant raises a sole issue on appeal: Did the District
Court err in instructing the jury, over the objection of the
plaintiff, regarding the consequences of joint and several
liability as the law was applied to the facts of this case?
On November 17, 1984, Julie DeCelles was involved in an
automobile accident on a stretch of U . S . Highway 87 between Roundup
and Billings, Montana. At the time she was riding as a passenger
in a 1965 El Camino owned by Rosita Kelley that also carried Rosita
and Julie's brother and sister, Ray and Rosella Eder.
The evidence also indicated that Julie, Ray, and Rosita began
drinking the morning of the day before the accident in Harlem,
Montana, and continued drinking throughout the day. Later, they
decided to drive to Havre to pick up sister Rosella. After
arriving in Havre they went to a bar, played pool and continued to
drink.
In Havre, the group then decided to travel south to Billings,
via Roundup, Montana on U . S . Highway 87. In the early morning
hours the El Camino crossed the center line and collided with a
northbound vehicle. The accident rendered Julie DeCelles
permanently blind, without her sense of smell, and with only a
minimal sense of taste. Although it was disputed, physical
evidence of his injuries indicated that Ray Eder was driving the
vehicle at the time of the accident.
On December 22, 1986, the plaintiff filed suit against Ray
Eder as driver of the vehicle and the State of Montana for alleged
negligence in maintaining the highway at the accident site.
Defendant Eder failed to answer and the District Court subsequently
entered his default on April 5, 1988.
During trial the plaintiff presented the testimony of expert
Jack Talbott, a mechanical engineer, who stated that the highway
at the accident site was deteriorated and contained undulations or
ripples in its surface that could have contributed to the accident.
The plaintiff also presented evidence that the State of Montana
knew of the road's condition for several years and failed to repair
it. This was contested by the State.
Over the plaintiff's objection, the District Court instructed
the jury regarding the consequences of their verdict under the law
of joint and several liability. Returning a verdict in accordance
with comparative negligence law, the jury then apportioned fault
among the parties finding the plaintiff 35% negligent, defendant
Eder 65% negligent, and the State 0% negligent. The plaintiff
moved for a new trial on the grounds that the instruction was an
error of law which led to jury misconduct in arriving at a verdict.
The District Court denied the motion. Plaintiff now appeals
raising the aforementioned issue.
The plaintiff argues that because there was ample evidence in
the record to support the negligence of the State, the jury clearly
disregarded this evidence and concluded that application of joint
and several liability would be unfair to the State. Thus,
plaintiff contends that the giving of Instruction No. 35 on joint
and several liability prejudiced her case and constitutes
reversible error. The instruction provided:
Under the legal concept of joint and several
liability if you find
(a) that defendant State of Montana was negligent,
(b) that negligence was a legal cause of
Plaintiff's injuries, and
(c> plaintiff was 50% or less comparatively
negligent, then defendant State of Montana may be
responsible for paying the entire amount of Plaintiff's
damages after reduction for plaintiff's comparative
negligence.
- - 5
See also 27-1-703, MCA. The plaintiff argues that it was
prejudicial error to give this instruction in this case because
inappropriately injected information about the nonexistence
of Ray Edertsinsurance into jury deliberations and allowed defense
counsel to allude to such nonexistence during closing argument; (2)
it allowed the jury in effect to decide the justification for
applying the joint and several rule which is properly a legislative
function; and (3) it inappropriately allowed the jury to consider
the post-judgment effect its finding regarding liability would have
on each defendant.
We reject these arguments. The underlying thread running
through these contentions is skepticism of the informed jury's
ability to fairly perform its function in the decision-making
process without yielding to passion or prejudice. The modern trend
and better view among comparative negligence jurisdictions that
have considered the issues is to permit the jury to know the effect
of its percentage findings. See, senerally Ainsworth & Miller,
Removins the Blindfold: General Verdicts and Lettins the Jury Know
the Effects of Its Answers, 29 S.Tex.L.Rev. 233, 237-238 (1987);
Talenfeld, Instructins the Jury as to the Effect of Joint and
Several Liability: Time for the Court to Address the Issue on the
Merits, 20 Ariz .St.L.J. 925, 933 (1988) . In Martel v. Montana
Power Company (19.88), 231 Mont. 96, 105, 752 P.2d 140, 146, we
expressly held that such skepticism of a jury's ability to
properly render its verdict in conformity with the law is
unfounded:
We think Montana juries can and should be trusted with
the information about the conseauences of their verdict.
Other jurisdictions have considered this question and
have come to differing conclusions. An excellent review
of the holdings in those jurisdictions is set forth in
the Idaho case of Seppi v. Betty (1978), 991 Idaho 186,
579 P.2d 683. After a lengthy discussion, the Idaho
Supreme Court concluded that it is naive to believe that
jurors do not speculate about the effect of their
answers. To end speculation, the Idaho court said jurors
should be informed of the effect of their answers.
Seppi, 579 P.2d at 691. The Idaho court tempered its
position by giving the trial court the discretion not to
inform the jury in those cases where the issues are so
complex or uncertain that the jury would only be
confused. Seppi, 579 P.2d at 692.
We adopt the reasoning of the Idaho Supreme Court
and hold that under the circumstances of this case, the
jury should have been informed of the effect of its
verdict.
Both Martel and Seppi dealt with the question of informing the jury
about the effect of modified comparative negligence law on the
jury's verdict. The Idaho Supreme Court applied the principle of
informing juries adopted in S e m i and later adopted by us in
Martel to the same issue of joint and several liability presented
in this case in Luna v. Shockey Sheet Metal & Welding Co. (1987),
113 Idaho 193, 743 P.2d 61, 64:
Similarly, the doctrine of joint and several liability,
under which a defendant assessed a mere 1% negligence
may be required to pay 100% of plaintiff Is damages if,
for some reason, the joint tort feasor is unreachable
through the .judicial process, I1poses a trap for the
uninformed jury." An informed jury will be much more
likely to carefully examine the facts prior to reaching
a verdict holding a defendant even 1% at fault, no
matter how cosmetically appealing a partial allocation
of fault might be.
In Luna the Idaho court followed the reasoning of Kaeo v. Davis
(Hawaii 1986), 719 P.2d 387, which addressed the same issue of
joint and several liability. The Hawaii Supreme Court, relying on
the Idaho Courtls holding in Seppi, determined that it was more
desirable for the courts to explain the operation of the law to the
jury than to perpetuate a system which encourages mistaken
speculation by uninformed jurors. Luna, 743 P.2d at 64-65; Kaeo,
719 P.2d at 395-396. The holding in Kaeo was also based in part
on the language of Rule 49 (a), Haw.R.Civ.P., which is identical to
language in the Montana rule, that "the court shall give to the
jury such explanation and instruction concerning the matter . . .
submitted as may be necessary to enable the jury to make its
findings upon each issue.I1 Rule 49(a), M.R.Civ.P. Following our
reasoning in Martel, we therefore now adopt the reasoning of this
line of cases and conclude that a jury should be instructed about
the consequences of its verdict with respect to joint and several
liability.
The State of Wyoming has also followed the reasoning in Seppi
and applied the principle of informing the jury about the
consequences of its verdict to the concept of joint and several
liability. See e.q. Coryell v. Town of Pinedale (Wy0.1987)~745
P.2d 883. Moreover, the Wyoming court has addressed the issue of
whether it is proper for counsel to argue the effect of joint and
several liability to the jury. See Seaton v. Wyoming Highway
Commission (Wy0.1989)~784 P.2d 197. In Seaton as in the present
case, the plaintiff was an injured passenger alleging negligence
on the part of the driver and the Highway Department. The Wyoming
Court held that unless counsel misstates the law regarding joint
and several liability, counsel may properly comment on any
instruction pertinent thereto given by the court. Seaton, 784 P.2d
at 207, Harmon v. Town of Afton (Wy0.1987)~745 P.2d 889, 893.
Here, counsel for the Highway Department made the following
argument in closing:
Please do not put one percent for just any reason that
may cross your mind.
The judge read to you Instruction No. 35. A finding
of one percent under Montana law, joint and several
liability is a complete defeat for the State of Montana.
A finding of one percent under instruction No. 35 would
allow the entire amount severally to be collected from
the State of Montana.
Please do not put one percent or anything of that
nature.
Zero is what we're after and zero is what we must
have.
...
Now the' plaintiffs haven't asked you to find a
percentage of negligence against the state but to be sure
that you find it to be small because that would be
realistic from their point of view.
But the temptation is in many of these situations
when somebody has worked so hard and are such fine
attorneys, as these two gentlemen are, is to award them
something for their effort.
Don't do that.
We can't make these decisions based on the sympathy
or on the concerns for other people's efforts. We must
base them on the facts.
And that is why when you get that jury verdict form
when you go through it we're going to ask you to fill in
zero percent against the State. Because if you find that
we're one percent or five percent negligent, we could be
responsible for the entire award.
We reject the plaintiff's contention that this argument improperly
injected the issue of the existence of defendant Eder's liability
insurance into the case. We note that the word insurance never
appears in the record. We follow the rule that absent a
misstatement of the law, counsel may properly comment during his
closing argument on any instruction given by the court. Seaton,
784 P.2d at 207; Harmon, 745 P.2d at 893.
Finally, while we find no prejudicial error in Instruction
No. 35 as given by the District Court, in applicable cases we
recommend that the jury be instructed on the effect of joint and
several liability-onits verdict in the following manner:
Under the doctrine of joint and several liability, if the
defendants are found to have proximately caused in any
degree the injuries to the plaintiff, each such defendant
is liable to the plaintiff for all of the plaintiff 's
damages for which all of such defendants are responsible,
irrespective of the varying degrees of fault between the
defendants in causing the injuries. The reason for this
doctrine is that although the defendants may have been
at fault in differing degrees in causing the injuries,
the resulting harm to the plaintiff is not divisible.
It is possible therefore that a single defendant may be
called on to pay for the plaintiff's damages for which
all of such defendants are responsible, in amounts in
excess of that defendant's proportionate fault for the
injuries, or for all of such damages. You may not
speculate whether, or how, or from what resources, any
such defendant or defendants might pay a possible
judgment against them. Your duty is to fix the fault,
if any, of each defendant based solely on the evidence
before you and the instructions of the court.
We believe that this instruction better effectuates the policy of
fully informing the jury regarding the consequences of its verdict.
The order of the District Court denying the plaintiff Is motion
for new trial is
AFFIRMED.
Justice /
4A .T+
We Concur:
Chief Justice
/
Justices
Justice John C. Sheehy, dissenting:
I dissent. Instruction no. 35 (set out in full in the
majority opinion) is a faulty instruction that should have never
been given. It is incomplete, allows for speculation by the
jurors, allowed counsel for the State to argue improperly thereon,
and it abrogated the joint and several rule of liability.
The statute in effect at the time of this case (it has since
been amended) allowing joint and several liability provided:
(1) Whenever the comparative negligence of the parties
in any action is an issue and recovery is allowed against
more than one party, each party is jointly and severably
liable for the amount awarded to the claimant but has the
right of contribution from any other party against whom
recovery is allowed. Contribution shall be proportional
to the negligence of the parties against whom recovery
is allowed.
Section 27-1-703 (I), MCA (1978).
When the foregoing statute is compared to the instruction
given by the District Court, it is apparent that the instruction
was defectively incomplete. First, the instruction singled out
the effect of a judgment as to one of the defendants, State of
Montana, although there were two defendants in this action. A
proper instruction would have told the jury that each party is
jointly and severally liable, and that there is a right of
contribution in favor of one party who pays more than his proper
share of the judgment. One might argue in this case that such a
full instruction would allow the jury to speculate as to whether
the State of Montana could recover any contribution from Eder, but
that is no more speculative than the instruction given, which
allowed the jury to speculate that Eder could not pay any part of
the judgment. The majority recognize these defects, because their
suggested instruction does not single out one defendant over
another.
The given instruction allowed the jury to speculate as to
matters outside the evidence in this case, notably whether after
a judgment was rendered, the defendant State of Montana would have
to pay the whole judgment because Eder himself was not responsible
for any amount. Attorneys for the State strove to get that
implication across to the jury.
It may be a salutary thing that juries be informed as to the
effect of their verdicts; in any event, they should be fully
informed and the information given should be neutral as to the
parties involved.
Based on the given instructions, the attorneys for the State
engaged in an improper and dishonorable closing argument. By the
argument, the jury's attention was drawn away from the issues in
the case, essentially here as to whether the State of Montana was
negligent in the construction and maintenance of the highway so as
to be a proximate cause of plaintiff Is injuries. The jury was left
instead to speculate on the fairness or equity of the joint and
several liability rule. I am amazed that the majority tolerate
that kind of argument. The instruction permitted the State's
attorneys to appeal to the prejudices or sympathies of the jury,
either prejudice against Eder, or sympathy for the State even if
it had been negligent in causing injuries to the plaintiff. It is
a cardinal principle of trial law that the trier of fact must
confine his or its decision to the evidence in the record. Whether
or not either defendant could pay the judgment was outside the
record. Whether the State of Montana could recover contribution
from Eder was outside the record. Such matters had no place in the
jury's consideration of the facts in this case, yet those matters
are exactly what the argument of the State attorneys invited.
Because of the faulty instruction and the improper argument
based upon it, I would reverse and remand for a new trial.
I concur in the foregoing dissent of Justice Sheehy.