*1 Argued June affirmed October Respondent, DEMARIS,
v.
Appellant.
WHITTIER,
P-2506)
(No. 10223, SC
Before Chief Tongue, Bryson, Justices, Pro Justice Tompkins, Tempore.
DENECKE, C. J.
DENECKE, C. J. plaintiff personal
The recovered in this a verdict injury appeals. action defendant We affirm. assignment
Defendant’s first error is that denying trial court erred defendant’s motion for join third-party to Peter leave Dukes as a defendant (a). 16.315(4) pursuant to ORS Defendant’s reason moving join possible right to Dukes was to enforce a against plaintiff contribution Dukes in the event against pickup recovered parked defendant. Dukes’ was just highway. pickup on either or off the His plaintiff stopped help. not would start and Plaintiff plaintiff was struck car defendant’s while was attempting pickup. to start Dukes’ right
Defendant still has the to seek contribution only from Dukes. detriment defendant incurred by the trial court’s denial of his motion was defend- inability try obligation ant’s contribute in the lawsuit issue Dukes’
brought plaintiff rather *3 separate brought than a lawsuit This defendant. prejudice justify is not such as if would reversal even ruling we were to conclude that the trial court’s was error. assignment challenges
Defendant’s second error of photographs. the admission into evidence of a of set photographs along sequentially The were taken the highway pace approaching at intervals the curve They daytime where the accident occurred. were photographs showing parked a car on the shoulder pictures days the road. The were taken trial two before investigator employed by attorneys plaintiff’s an purpose litigation. testimony for the There that was depicted photographs the scene in the was substantial- ly accident, similar the to scene at the time of the presence except pickup for the of the car than a rather lighting. and the parties agree may photographs
The that though changes admitted even some have occurred must be a since the time of the accident and that there probative of the reasonable balance between the value any prejudice might photographs and which result photo- They agree the from their admission. also represen- graphs must to true be shown be and faithful jury. they not the tations and will mislead disagreement application of arises the Counsel’s over the to the facts. law initially
Objections pictures sustained. to the were pictures the were to show Later three of admitted along pavement between the the bank distance and presence picture shows The of the car in the road. pavement only enough to that there was room off the pickups parked park at not where the a car and were a the accident. The fact that it was car the time of goes pickup weight to and not to not a admissibility of the evidence. stage
At later in the trial the defendant testified a dip highway which of a in the to the existence a He introduced obstructed his vision of the vehicles. dip picture the court a in the road. Thereafter show request remaining pictures plaintiff’s admitted the at "physical impediment to whether there was a show were it the exhibits The court made clear that vision.” might any purpose test or show a not admitted experimentation. judg proper judge the trial exercised
We believe photographic exhibits. of the ment in admission carefully prejudicial were value and effect Probative weighed given proper There was no consideration. ruling. in the error court’s assigns trial court’s as error the defendant also The plaintiff’s overruling objection portion of his jury. argument, closing argument counsel’s *4 ruling objection were: and Then, is the court GREEN, attorney] plaintiffs "[MR. 34.8, if he lives a years, that he has 34 going you to tell heard you And age. for man his a expectancy normal life he has works testify every day after he doctor that [28] in that limping and weakness and is sometimes pain him from right leg keep And in that it doesn’t right hip. him. If he sits in working, but it’s a discomfort. It bothers same pickup long problem. too he has the "Now, yearly future as other at amount age—make this a in high, thinking —is a little bit but with body, coupled degenerative processes occupy our has, $3,000.00 a I think if you average upward what he year— Honor, HOLMES, attorney] defendant’s Your
"[MR. argument diem going object per I’m to that. That’s support figure. no evidence to and there’s }jc :fí on the objection
"THE COURT: The will be overruled reasoning ground suggested that this is but a course of from the evidence of injuries.” Mill, Our decision in Rich v. 245 Or Tite-Knot Pine 185, 201-202, (1966), directly P2d 370 is not is point argument but of assistance. The same type was made counsel in that case regarding damages for loss of future for Unlike a claim earning capacity. for and evidence can be damages pain suffering, introduced concerning the amount of loss suffered Tite-Knot, from In how impaired earning capacity. ever, no evidence concerning was introduced amount of income loss. We held: "* * * in a appropriate The above is present plaintiff
situation like the fered a serious argument one where has suf- injury which will limit his activities. representation jury is not a amount plaintiff money per day, will lose a specific suggested reasoning but is a course of from the evidence injuries damages of his to an award which will include 202. earning capacity.” for loss of future 245 Or at of pain There is no standard for the measurement merely are instructed suffering. Oregon and Juries reasonably as will they should award such sum discomfort for and plaintiff any pain compensate any or standard any suffered. the lack of Despite for reasonably pain evidence of what will compensate pain as as suffering, long *5 continue suffering to be a proper element of damages, we are of the that opinion counsel can properly suggest what is reasonable compensation.
We know of no serious contention in the bench or bar of that Oregon counsel argue cannot that properly a certain sum lump should be awarded the pain for all and discomfort suffered and to be suffered. If this kind of argument is an proper, argument that a jury certain sum is reasonable for a year’s compensation and that that sum can be the of life multiplied by years does not expectancy, to us to be appear improper. courts have Appellate divided on the permissibility of this kind of argument. Several of these cases are 269. Botta v. collected in 1962 Illinois Law Forum Brunner, 26 NJ 138 A2d 60 ALR2d 1331 (1958), is a leading case for the that the proposition However, is the in that improper. majority case concluded that it was also for counsel to improper sum, the suggest jury any the sum stated including in the damage paragraph of the complaint.
Counsel did not that there was evidence represent the sum he suggested was reasonable compensa tion. He did not suggest had to jury accept sum he He suggested. did not dwell on this unduly circum approach fixing damages. Under these stances the trial court in overruling did not err defendant’s objection. the defendant
Lastly, contends the trial court erred in his overruling objection to the of the verdict. filing verdict form submitted the defend special ant could it degree not used because referred to the of fault of joined party. Dukes who had not been as a The jury returned a verdict "to the awarding plaintiff $37,500 general damages the amount of and special $8,306.10.” of the amount of The essence defendant’s was that the awarded objection jury plain tiff the full amount but prayed damages, for as special as only general amount portion prayed may the jury argues The defendant damages. reducing these amounts improperly have computed found they because general damages the amount failing at fault while partly improperly the plaintiff because of special damages plaintiffs also reduce fault. was The jury was unobjectionable.
The verdict is that the presumption instructed and correctly Port City Sedillo v. the instructions. jury followed (1963). It is land, 28, 33-34, 380 P2d 234 Or *6 award,"but to made an jury improper the possible is of juries the mental concerning processes speculate * * Rowe, 222 Or Mullins v. the courts *.” forbidden (1960). 519, 522, P2d 861 353 Affirmed.
BRYSON, J., concurring. specially the "per the use of majority opinion approves the issue diem” when on addressing jury This case is for future and suffering. damages pain computa- not an use of the "mathematical aggravated Here, method.” counsel referred plaintiffs tion to the jury life and plaintiffs expectancy suggested at arriving pain mathematical for yearly computation $3,000 a "I if you upward and think suffering, average * * *” (for year suffering). and pain in disagreement courts are The decisions from other for of mathematical of the use as to propriety for the the amount estimating, jury, mulas ALR2d Annot. 60 suffering. and pain awarded for Brunner, 26 v. is Botta leading 1347. One of the cases (1958).1 The New 82, 138 713, 60 ALR2d 1331 A2d NJ 689, (1967), Cosgrove, court 227 A2d 704 1In v. 49 NJ Gleitman dimensions, pain suffering has "no repeated the observation * * Long Railroad Mileski v. Island mathematical or financial (2d Brunner, 1169, 1173 1974), 26 cites Botta v. Company, F2d n 3 Cir 499 (1958), 82, 138 713, 60 proposition that counsel ALR2d 1331 for the NJ A2d argument. may "per diem” not use the court, Jersey after confronting the problem on several occasions, stated:
"After granting certification to study the entire matter, we requested supplemental briefs in order to deal more fully with a problem currently which is vexing courts, i.e., the trial right plaintiff’s counsel in personal injury damage suits to suggest monetary mathematical jury formulas to a computation for the compensation pain and suffering.” 26 NJ at 87. The court then concluded that the procedure should not be allowed and held that to do so was reversible error.
There is no similarity between for loss of future earning capacity those for and suffer- pain ing. See Rich v. Tite-Knot Pine Mill, 245 Or (1966). P2d 370 In the former there is evidence of the plaintiff’s earning capacity, which is subject mathematical In computations. it latter is univer- held sally that compensation for pain and is suffering not subject to mathematical computation and is not capable of being exactly and accurately determined in dollar amounts. "* * * There basis, table, is and there can be no fixed
standard, or mathematical
rule which will serve as an
accurate
guide
index and
damage
establishment of
personal
awards for
injuries. And it
equally plain
is
*7
there is no
measure
which the
pain
amount of
suffering
endured
particular
human can be calcu-
lated.
place
No market
exists at which such malaise is
* * *”
bought and
Brunner,
sold.
Botta v.
supra at 92-93.
In Oregon,
the measure of
pain and
suffering as a result of a personal
has
injury
always
been "fair and reasonable compensation.” See Uniform
30.02(1).
Jury Instruction No.
To allow
diem”
"per
for pain is to
suffering
encourage
speculation and confusion in trial
In order
procedure.2
Argument
Jury,
269; King
2Counsel’s Per Diem
1962 Ill L Forum
v.
(ND
Railway Express Agency,
1961);
Manicke,
Caley
Because this is the first time this court has con- problem fronted the and because the infraction this departure, case is one of minor this case should not be ground. proposed reversed on this The rule here should prospective application.