*1 оpinion I concur the court’s ad- statements were that these charges of recent fabrica-
missible to rebut
tion, Rule 801 to amended not because we of such state- discretionary admission
allow Otherwise, I continue to adhere to
ments. concurring opin- my specially
that stated State, Brown v.
ions and Makinen v. supra,
Judith Goody Lubing, K. W. Keith and James the Administrator of sentative for and Jackson, appellant. for Deceased, Coryell, L. the Estate of John Day Day, R. Richard E. and Stuart herself, Individually on behalf of Neville, Williams, Porter, P.C., Day Cas- & (Plaintiff), Coryell, Appellant Judith per, appellee Town of Pinedale. Greenhalgh, Greenhalgh, Gary M. Bus- Rosetti, sart, Springs, for West & Rock PINEDALE, P. OF James TOWN Frey and Farnsworth, appellees Farnsworth. II, Appellees and Win (Defendants). THOMAS, BROWN, C.J., and Before No. 86-85. MACY, CARDINE, JJ. URBIGKIT Supreme THOMAS, Justice. question to resolved in singular
Nov. 1987. error for the appeal is whether it was the law of to instruсt the on trial court wrongful liability in a joint and several July on case which arose death ques- issue a second appellant briefed an instruction with tioning pursuit by to the lawfulness but, appel- officer, argument, at oral second issue the court that the lant advised that the trial We conclude was abandoned. giving err in the instruction court did not judg- liability, is affirmed. ment of the district court fоllowing forth the set in her brief: of issues statement instructing err in Did the trial court “1. joint and sever- the effects of allowing defense liability al comment thereon? *2 “2. Did the trial instructing court err in closed, After the evidence was that ‘it was lawful for Officer gave district court two instructions to the Frey pursue Catón corpo- outside the jury, appellant’s over the objections. The ” rate limits?’ instructiоn, which was paragraph one in longer instruction defining generally appellees, Farnsworth, The Frey and reit- negligence, the law of related to the law of appellant’s erated the statement of issues. The court ad Pinedale, The appellee, Town made a jury: vised the counterstatement of the issues: “When the negligence of two “I. The trial court correctly instructed persons or more injury, causes an each as to the effect of its verdict as person is wholly liable to the required by W.S. 1-1-114 § regardless degree relative “II. The correctly trial court instructed which each contributes to the injury.” that municipal police officer lawfully pursue could The second suspect instruction to appellant outside which corporate objected his pursuant limits advised the that it was lawful (1977).” Frey 31-5-1204 pursue § Catón corpo- outside the rate limits of the Town of Pinedale. This 10, 1983, July On Coryell, John the hus premised upon the error of the appellant, band of the was struck and killed giving court in the first instruction. near the town of by Pinedale a vehicle Appellant upon relies by cases which driven one Catón. аd- Caton’s conviction of dressed directly advising vehicular homicide was by affirmed jury of of its State, court in verdict in Wyo., Caton v. assessing comparative negligence. The initiated an ac history of the instances in which tion to this court wrongful recover for the death of legislature have her addressed husband and named as defendants Ca- issue is tón, relatively brief. In the Town of Woodward v. James P. Haney, Wyo., (1977), II and we Win held Farnsworth. As reflected in that it improper was to inform the opinion, the court’s in Catón v. su the consequences of its in pra, Frey assessing is the officer who was comparative negligence. chasing Catón was the time that Catón justified by presumption that Wyo- struck and Coryell. killed John appel ming legislature, adopting compara- theory lant’s Frey was that negligent tive statute from chasing the state of high Catón at a speed. rate of Wisconsin, intended that given it should theory against Farnsworth, who was the same construction as the the Pinedale courts Wis- chief of Frey given consin had comparative negli- hired and at the Coryell’s death, time of gence statute at the time of its was that he was enactment hiring opinion, In that supervising of Frey. noted the The Town of Pine- legislature enactment our dale was included as a defendant under a theory 1-7.7, which respondeat superior. created Prior to § trial, W.S.1957, Supp.1976, Catón Interim appellant’s settled the the last sen- claim him, against provided tence of which he was all dismissed from cases the “[i]n action. shall inform the jury accordancе with Wyo conse- ming quences relating comparative negli Although its verdict.” the bal- gence pursuant 1-1-109, W.S.1977, ance statutory provision of that Ca- was de- § tón was included as an actor in clared Fisher, the verdict unconstitutional in White v. form to whom the last sentence apportioned. should be By special ver was not provision affected dict, found and Farnsworth remains a stаtutory of our Chap- law. were not assigned 188, 1, per ter Wyoming 1977, appear- § cent of the negligence to Catón. ing as W.S.1977. Stores, Inc., manner and cannot be invoked a similar
In Johnson
there
held to address those situations which
(1977), this court
P.2d 908
Wyo., 568
contributory negligence
cases” found
is no evidence
phrase “in all
1-1-114, W.S.1977,
plaintiff.
a clear and
evinced
meaning
justi-
commonly understoоd
Appellant does not contend that the
respect to the
advising
jury with
fied
given by the court
an errone-
struction
negli-
findings of
effect of its
statement of the law. Her sole claim is
ous
*3
negligence case.
comparative
in
gence
a
should not have been
that the instruction
decision in
distinguished the
Wood-
We
question
given. Authority on the
of advis-
holding
supra,
Haney,
ward v.
ing jury
respect
joint
to
and several
a
1-7.7, W.S.1957,
Supp.
statute,
Interim
§
generally
is found
liability
sparse
188,
1,
1976,
in
readopted
§
advising
propriety
the area of the
of
within
1-1-109,
1977,
in
found
Wyoming
§
consequences of their find-
jurors of the
1977,
by implication
amended
had been
Hawaii,
Davis,
ings.
719 P.2d
Kaeo v.
1-1-114, W.S.1977.
adoption
of
§
Supreme
Hawaii
387
Safeway
in
v.
After the decision
Johnson
advising
considered
1-1-109, W.S.1977,
Stores, Inc., supra, §
liаbility in the
jury
joint
about
to authorize the court
was amended
49(a) of the Hawaii Rules of
light of Rule
consequences
“[ijnform
Procedure,
pertinent
in
provides
Civil
of the
its determination
part as follows:
1,
24,
Wyoming
Chapter
S.L.
fault.”
§
“ * * *
The court shall
1-1-109, W.S.1977,
1986,
now found
§
concern-
explanation
such
and instruction
Cum.Supp.1986.
may
ing matter thus submitted as
this court have
prior holdings of
jury to make its
necessary to enable the
con
advising
restricted to
been
findings upon each issue.”
percentages of
cerning the effect of the
light of its rule:
court held that in the
assigned by
to the sev
“ * * *
court,
trial
[T]he
comparative negligence
eral defendants
appropriate, should inform
when
of the
Essentially, this
true
cases.
consequence
possible legal
of the
to this cоurt’s deci
legislative responses
among
apportioning
joint and several
the rule of
sions until
explanation
An
joint tortfeasors.
legislature in
liability was abolished
of the doctrine
operation
1,
24,
Chapter
§
liability in that situation would be
W.S.1977,
l-l-109(d),
1986,
found in
now
§
in HRCP
our directive
consistent with
to the effective date
Cum.Supp.1986. Prior
* *
Davis,
49(a)
supra, 719
*.” Kaeo v.
11,1986, the law of
legislation, June
of that
P.2d at 396.
firmly
liability had been
joint and several
distinguished
footnote,
that court
By
v. Du
Chandler
established
requiring an
statute
application of Hawaii’s
(1952);
580
Wyo.
251 P.2d
70
gan,
regarding the law of
instruction to the
Com
Phelps
Construction
v. Woodward
appropriate.
negligence where
comparative
(1949);
Wyo.
pany, 66
dichotomy
recognize
be-
The court did
41
Company,
Motor
Hester v. Coliseum
to in-
hоlding it error
courts
tween those
recognize
(1930).
instruction J., filed a opinion. issue, As a URBIGKIT, Justice, specially argues erroneously per- that counsel concurring. consequences mitted to describe the during closing argument. verdict The This is one case more instance of reflects no record made recurring often police factual events by appellant’s any final well-known, previously chase of a convicted argument of opposing counsel. driver, driving drunk this through time * “ * * firmly It is im- established that coming town of unexpectedly argument of proper counsel cannot be tragic to a climax when the chased driver urged raised or for reversal in the ab- loses control of the and kills an vehicle * * objection, of an Joly sence *.” v. enough to innocent victim unfortunate Stores, Inc., Wyo., 502 P.2d wrong place wrong time. (1972). 364 adversely The decided issue of Other cases hold the same. Webber negligence presents auto-chase ar- broad Farmer, Wyo., (1966); Ed ray injured recovery and innocent-victim Harris, (1964). Wyo., wards v. Compare concerns. DeWald v. Corporation Chrysler See also v. Todoro Zevitz, (1986) Wyo., 643 Po- vich, Wyo., 580 1123 Liability High lice Civil and the Law of note, only briefly We and for the Pursuit, (1987); Speed Marq.L.Rev. 79 2 purpose explaining appellant’s abandon Comment, High-Speed Pursuits: Police issue, prоvisions ment of second Municipal Liability Acci- Officer 31-5-1204, W.S.1977. That vests statute Involving In- dents the Pursued and an officer with arrest 101 Party, nocent 16 Seaton Hall Third though felony for a in certain misdemeanor Anderson, (1986); Alpert and Most including: cases Pursuits, Deadly Force: Police Justice “(ii) being Driving physical actual (March 1986); Quarterly, No. Vol. while control vehicle under influ- Regan, Koonz and “Hot Pursuit” —Prov- any рro- ence of alcohol or substance as Trial, (Decem- p. ing Negligence, Police 31-5-233; hibited W.S. ber, 1985); Costan, In- Hot Pursuit: The [******] nocent Victim’s Remedy, CTLA Forum, “(b) XVI, (1986).1 spe- may, court p. 204 Vol. No. appeal any party an shall: issue not come here as
cific does amended and debated H.B. nals made no Negligence Problems the 50-50 Effects of parative-negligence statute ming ter L.Rev. 199 tive-negligence sessment struction to inform the acted as Ch. as— covery lative prohibition against informing the en the adverse quence instruction as question, since direct the law as court’s settled the result for fact sequently “who ton v. Fisher Controls Verdict: This court consequence fifty-fifty” plaintiff-loses test for re- P.2d 1214 although technically correct in 94, Digest 1973, p. law as action subject was opinion liable” and provision Informing directed the verdict posture. Their adopted raising denied-recovery negligence-as- in denial of Wisconsin accurately portrays 626. 28, is the (1975). The contendably of Senate and House Jour- cases Answers, of its verdict in S.L. of when the “not as the difference between in the “who will the “effect of the verdiсt” objection was instruction Smith, legislative procedure. appeal my Jury subject Company, conjunction comprehensively Wyoming, came 10 Land & Wa- first-generation concern Wyoming the instruction originally review. inaccurate Comparative of the conse- the pay.” given and into the of an compara- and this not tak- *5 Special jury of stating is con- Legаl great Wyo- legis- Bur- com- rule en- has occurred in establishment of the re- pay, real Through true and police officers would actors should be dict.2 conception insurance gues say, even information quirement lant here contends that the communicated quences My concern in this case arises from the centage shall claim in strued to of its verdict.” “ * “(iii) substantiаlly different from who will form,” party namely that accuracy [*] * * is not Inform the inform might corresponding litigation, both this is though the apportionment that the town or its companies, given Nothing herein of its determination of the and money. that an accurate instruction was prevent any party wrong. [*] the insurance carrier necessarily negligence,” should be interest be. definable essentially W.S.1977 states: what “half truth and in mislead- on the effect [*] To the statutory development In all cases the court I obligation pay the effect of their agree. permitted [*] the legislative money untrue. She ar- is contrary, liability shall be amount of same factually the conse- settlement rests with risk. To to know the ver- among as the intent appel- argu- [*] may con- per- un- his court, medical-malpractice procedural agreement crisis In with the legislation, Ch. 10, Comparative than dissent be- Wyoming 1976. I concur rather find in explicitly the error that I the record included cause 188, final-argument is on recodification Title 1 in S.L. of comments unavailable Ch. 1977, necessary trial Wyoming W.S.1977 absence where § Stores, Joly objection. reads: See 1. For a Exрanding Municipal So.2d 1068 crisis, 50-50 City In the city Limits, plaintiff-wins negligence limits, current second-generation rewritten comparative-negligence (1986), 61 Tul.L.Rev. 1556 see discussion of and Larrikin v. to Tort Note, permit recovery 1986, 1-1-109, Liability medical-malpractice Larrikin v. Brooks: Brooks, liability test, statute, Beyond and: La., beyond dollar amount as fault. The new ant is any party its determination of '"(b) "(B) liable The court Inform [*] shall: only further [*] may, for that may provides [*] and be attributable portion [*] that each [*] of fault.” the total defend- to his Inc., request and cases “And would that the Court opinion. majority cited in the is instruct there insurance in case, if going the Court is to instruct conference, In jury-instruction joint liability. ques- It’s several stated: « * * * added.) law.”3 (Emphasis tion of rpjjgp]ajnyff objects to number 9 No motion in limine then made or and, specifically, plaintiff objects to argument other tаken final paragraph stating last second to the per- when one the defendants was concurring negligence that ‘when the represented clearly suasively under- persons injury, two or more causes an suggested and previously standable advo- person wholly plain- each liable to is cacy: regardless degree tiff of the relative “Now, injury.’
which each contributes to the you Court has instructed that That’s a definition of several you compromise are a sincere con- liability you way Joint several is viction. If are convinced one clearly nothing evidence, a rule of law and it has if you a sincere have con- viction, do with the deliberations should compromise your prin- nor then don’t fact, it. not even it’s the Court’s And сiples. the reason that we’re here pays judgment. decision who As I principle is that the law law, plaintiff’s understand the it’s the know, Wyoming negligence, you a lit- may pursue decision who she event being tle bit is like little bit gets judgment. that she pregnant. thing. There’s no such par- “The that we think reason that this Instruction, is one “There number paragraph prejudicial ticular to the contains onе is absolutely sentence that plaintiff is understand that the dynamite. says, It ‘when the going argue joint defendants are persons of two or more liability length jury, injury, an person wholly causes each argument going go something regardless liable to of their find, like this: you Mr. Mr. degree relative to which each contributes If only Farnsworth even it’s injury.’ That doesn’t sound too percent, two judgment, say, dangеrous, means, does it? What it la- *6 thousand, police hundred then the gentlemen, you dies and if is that find five going pay is have to the entire Frey or either Farnsworth one officer judgment, and that is not fair. And percent, percent and Pat Catón 99 then going what the to be asked do Frey and Farnsworth and the Town can is either compromise on the pay be made amount of entire percent or a come with zero instance, damage you that For found. finding Frey and or to Farnsworth you hundred thousand dam- five if ages find judgment reduce the because of the percent negligent and one on the part Town can be Officer “I point dollars, would also out to the pay made not to thousand five that paragraph is not true. And pay it can made to the whоle reason it’s true is not and amount. Five hundred thousand dol- Farnsworth or the suggesting Town Pinedale will And lars. this I’m not not pay judgment have to the entire that five hundred thousand dollars is any event all party figure you three defend- even a consider in this should ants to this lawsuit are insured. case. time, prophetically dispositively
3. The though wrong, and ob- even archaic served: It's a is as stated that Instruction. Instructions, the Pattern think it’s about following “The is denied for the all, changed by Wyoming Legislature, to be reasons: First of the record show should nonetheless, agree- complete but that’s the and the Court's Court is full and law However, argument. plaintiffs going right. ment with the it. All That's been taken the Court believes status of care of.” Evenson, economist, Doctor “Plaintiff’s Harmon, you He can show six сharts here. Ted HARMON and Ada Jan
had wife, anywhere Appellants from four the loss is where husband up (Plaintiffs), nine eighty-nine thousand hundred dollars, I’m sure hundred thousand money time and gave him additional AFTON, municipal TOWN OF prepare he six more charts could corporation, Appellee up showing range anywhere from zero (Defendant), dollars. We’ll to five hundred thousand good common sense rely your own (Defendant). Hunting Julie damages are in this what the determine No. 86-127. if, fact, you some do find there is case Supreme Court negligence. “There in this case also another effect Nov. which, as finding a little bit my clients are as I’m concerned and
far important.
concerned, more even
Now, Florida does crime from doctor compensation to take
not have things He can do other
officer. he
living. good and makes He’s writer
money doing that. Win Farns- that. Frey do do
worth and Jim and their living
Their and their livelihood are law en-
professions and their careers added.) (Emphasis
forcement.” coverages from insurance
With available undoubtedly being defenses were
funded, pay, would this statement who ca- argument of
or the intrinsic emotional risk officers neither
reer ambit of 1-1-109
within read facially true. I cannot permit approve intent or content to
statutory payment responsi- attribution financial obli-
bility as to misstate It
gations jury. should not be
statutory license to lie.
However, objec- of trial absence
tion, concur.