Fleming v. Baptist General Convention

said, (Okl.1982), quoting from Min we (Okl.Cr.1955), State, P.2d 772 nix v. Joyce Amos J. FLEMING and H. province legisla- “It is within the Fleming, Appellees, appearing in body to define words tive acts, passed legislative and where act definition, legislature embodies a by the The BAPTIST GENERAL CONVENTION (Id 611) binding the courts.” at it is Baptist OF OKLAHOMA Miami d/b/a disregard to thus not leisure

We are Hospital, al., Appellant. et placed legisla- in a statute definition No. 54711. ture. (Nos. 54712, 54856 and 54857 Dore, is the doctrine of Nor Newman v. consolidated.) (1937) N.E.2d 275 N.Y. well case placed here. The of a sham transfer Supreme Court of Oklahoma. to interest under communi- defeat wife’s ty property applicable hardly laws to June serving public compli- in full Rehearing Sept. Denied ance the statutes under which it with established. disagreement

My special with the concur-

ring I opinion is that find no offense done

to Article Section 51 of Oklahoma provision

Constitution. That forbids

legislature granting any “exclusive

rights, privileges, or (empha- immunities.” mine). It, along

sis with Article Section designed prevent granting rights privileges

exclusive and the cre- monopolies. Sales,

ation of parte Ex 233 P.

Okl. It is intended

preserve equality between citizens who are

similarly Kimery situated. v. Public Ser of Okla.,

vice Co. P.2d 1066

South City Hospital Oklahoma Trust granted

been no immunity; exclusive enjoyed by

succeeds the identical status

any public all city, trusts “where a

town, county school district is a benefi-

ciary.” I any

Nor do find constitutionally prohib- “special”

ited legislation involved

case.

I would affirm the trial court’s order

dismissing the give action for failure

statutorily required notice.

I am authorized state that HODGES, LAVENDER,

Justices join this

HARGRAVE dissent. Baptist Hospital

cy room the Miami separate least 301 received at intramuscu- injections drugs. lar Because of the plaintiff injections, injected number of Paul, R. Paul John Grigg, Richards & arms, thighs rotated on sites between Tulsa, appellant. for injections, to these buttocks. addition Tulsa, Wolfe, appellees. Stephen C. Fleming injections in 1970 at Mrs. received by her her home which were administered HARGRAVE, Chief Justice. Vice mother. Joyce Fleming brought Amos 19, 1971, Fleming was On October Mrs. against Baptist General instant action emergency to defendant’s room be- taken Oklahoma, of the State of do- Convention migraine. injection for an A fore dawn Baptist Hospital, Miami ing business prepared staff member originally As Cosby, W. M.D. and Glenn injection and administered it into left drug brought, the action also named a man- thigh. experienced Plaintiff immediate That defendant is ufacturer as defendant. she returned pain and the time had longer party the action. This action no to began discoloring. injection the site home damages resulting sought recovery for Cosby condi- She consulted Dr. about the drugs the injection from an of two into left following day tion that afternoon. The she Fleming per- thigh of Mrs. which caused hospital admitted to the for treatment was injury. sonal problem. the The deterioration of the jury was tried to a and on The cause grow injection flesh at the site continued to the returned a December progressively worse. skin and subcu- M.D., Cosby, of defendant verdict favor tissue down to the fascia dete- taneous defendant, against remaining and the Mia- gangrene skin riorated and set in. The and $60,- Baptist Hospital, mi in the amount of and, after the subcutaneous tissue eroded hospital appeals. Defendant 000.00. now course, plain- run its the tissue death had prosecuted against appeal No is the defend- grafts required skin to close the tiff two Cosby ant’s in favor of Dr. and he verdict injury The nature of the and the wound. party appeal. not a this to injury given necessitated the to treatment December, over open remain until late two 20, 1980, By order of October this Court months. separate appeals num- consolidated four 54,712, 54,856, 54,857 and under the

bered against attempted Plaintiff to recover surviving number, 54,711, and the doctor, theorizing injury the was a re- applicable submitted one series of to briefs plain- prescription sult of his which allowed appeals. all many proof tiff to receive too shots under themselves, injections, harm the brought, As originally the action con- precipitate or body and can contribute against tained a setoff and counterclaim experienced. proceeded Plaintiff injury plaintiff, Joyce Fleming, unpaid medical against hospital theory under the hospital. bills owed to the defendant That precipitated proof injection which yet claim was severed for trial not and is at given deep into the injury issue. this was given, intended to but muscle as it was Briefly, the facts disclosed the tran- muscle, the skin and into the fat between script Joyce Fleming trial are that Additionally, tissue. or the subcutaneous history had a chronic pain origi- severe sought apply the doctrine of res plaintiff nating kidneys, migraine from the back injury, plain- ipsa loquitur to this thus many years. headaches for In 1968 her negli- inference that tiff was entitled to an personal physician years pre- of several administering injection caused gence in standing scribed a order for Talwin and injury. given together, Atarax to be on demand. Thereafter, Baptist Hospital September, through The defendant Miami 18, 1971, emergen- committed er- October she went to the contends that trial court overruling hospital’s Yes, ror in the defendant A. sir. plaintiffs evidence, demurrer motion Q. opinion? And what is that verdict, directed and motion for history subsequent A. From the notwithstanding the The basis for verdict. surgeries followup it and and all and argument is this the contention that there onset, catastrophic she very obvious- support is a total lack evidence either ly had damage immediate soft theory specific negligence against tissues of the thigh anterior lateral left hospital ipsa loquitur theory. or a res where she her received shot. specific negligence alleged against Q. you opinion Do have an to why theory Atarax injury? she received such injection given subcutaneously Talwin Yes, A. sir. intramuscularly. rather than Defendant Q. that, please, And what is sir? ipsa loquitur of res contends the doctrine type available instance where injury improper injec- is a of an result A. She received a shot of combined Additionally, tion. defendant contends drugs, Atarax, the Talwin and and with evidentiary there is a lack of basis for pain immediate severe and it de- wasn’t application of the doctrine in this cause. layed anything nature, of this it was time, immediate in fact dur- Insofar as the defendant contends ing the—while being the shot was still there is evidentiary no basis for submission given, my opinion and it is that this was theory negligence part on the injected into the subcutaneous tissue. jury, point to the that of error There no any is evidence at later on time must be refused. Defendant contends any disruption slough of deeper or there injection given is no evidence the muscle, covering muscle of or subcutaneously. Defendant the en states fascia, slough out, die, nor did it or be- theory tire that injury was caused a involved, come so hap- whatever injection subcutaneous of comes Atarax pened, happened in it the subcutaneous testimony

from the of Dr. Fite. It is Pat tissue. opinion conjecture contended that is mere opinion because that was his conclusion drawn from observed facts. Defendant Doctor, Q. opinion, you Do have an as stating cites several cases that there where proper to or it whether constitutes is no in evidence submitted the trial of a inject medically accepted practice to

personal injury to primary action establish thigh shot as injected such was into the negligence defendant, on part Fleming subcutaneously? of Mrs. is proper to a sustain demurrer to the evidence or direct a verdict for the defend

ant. Admittedly, is a way.” this correct state A. No Not Atarax. However, ment of the law. an examination tacitly Defendant's brief admits evi support the evidence in case will not opinion dence of exists an causation applicability its An here. examination of Fite, through it is testimony Dr. but thousand-plus page transcript of the quality opinion of this contended evi following trial discloses testimony suspect, dence is in that it was his conclu p. Dr. Fite beginning 371: sion from the recorded facts. It stated Now, “Q. Doctor, facts, based those However, “improbable”. this conclusion is you opinion do have an as to whether or granting the test for a demurrer to the Fleming Mrs. injury sustained an evidence motion a directed verdict from the shot injected into her lateral improbable does not refer evidence. thigh in emergency left room of Mia- granted Neither motion should be unless mi Baptist Hospital at approximately there proof is an entire absence of show 5:30 on October 1971? any right recovery. Fletcher Meadow Co., (Okl.1970).

Gold P.2d 885 an legal cognizance, being action of a demurrer to returned December 1979. The plaintiff’s or motion for directed evidence have submitted additions to their unless there is initial verdict should be overruled briefs the Court to Middle- referring tending brook, proof supra. entire to show absence The defendant contends recover; right passing upon Middlebrook, supra, inapplicable demurrer to the evidence or motion for because cause of action arose verdict, the trial must con directed court and the action was filed in gen- 1973. The against sider true all evidence which the rule eral that statutes will be construed as together prospective only demurrer or motion directed to be apply does not may reasonably affecting procedure. with all inferences that statutes Such stat- therefrom, disregard apply drawn all con falling utes to all actions within their terms, flicting evidence to the right favorable demur- whether the of action existed Beal, (Okl. rant. Condo v. 424 P.2d 48 before or after the enactment. This rule is 1967). based the tenet that no one any particular vested pro- mode of Considering plaintiff’s evidence as cedure for enforcement defense of his true, must, apparent as this Court it is rights. Oklahoma Water Resources negligence causation and were established Board Central Oklahoma Master Con through opinion testimony plaintiff’s Dist., (Okl.1969); servancy 464 P.2d 748 expert Similarly, quoted witness. testi- (Okl.1969); Gray Gray, 459 P.2d 181 mony duty, establishes a breach of thus it Phillips v. H A Grocery Marr is seen that the trial court did not err (Okl.1956). P.2d 765 statutory pre- submitting the case to the on the issue sumption negligence created 76 O.S. specific Also, negligence. no error is evidence, stands as a rule just overruling found the trial court’s defend- negligence as the common inference of law ant’s demurrer to the evidence and motion evidentiary is an Turney rule. v. Ans verdict, for directed as well as the motion paugh, 581 P.2d 1301 The stat- N.O.V. utory presumption found 76 O.S.1981 directly This conclusion leads to the 21 simply procedure outlines a mode alleged error of the trial court in overrul for the by enforcement of a claim establish- ing the defendant’s motion for new trial on ing and, proof order of in instances of ground the that the court erred in submit evidence, presentation of the burden. Re- ting against the case hospital the to the presumptions regarded buttable are jury upon “specific” both the theories of procedural mere ordering presen- means of negligence ipsa loquitor. and res Title 76 proof procedural tation of and this is provides O.S.1981 21 presumption a of law, not substantive as it attaches certain negligence in any arising action from the procedural consequences duty as to the of rendering of patient medical care if the production of by opposing other evidence sustains injury proximately an by caused counsel. Rotramel v. Public Service an instrumentality solely within the control (Okl.1975). 546 P.2d 1015 of the defendant injury where such does ordinarily negligence occur absent providing Inasmuch as the statute part the of the defendant. presumption negligence Middlebrook was in effect at Imler, 'S, Inc., Tenny Kugler & M.D. 713 the time this case came to trial and is a (Okl.1985), P.2d that, this procedural provision, Court held the trial court cannot provisions under the ipsa loqui- res instructing be found to have erred in the proof negligence tor and direct may jury be in accord provisions with the thereof. simultaneously jury. submitted to the The expressed Middlebrook, Under the views injection, last precipitated plaintiff's which supra, it jury is not error to allow to be injury, occurred in October of 1971. The upon negligence instructed both and statu actions here Sep- tory consolidated were filed in presumption negligence where the tember, 1973. This case plaintiff was tried De- produced evidence of discrete cember of jury’s with the negligence. verdict questions party that negligent defendant raises dence neither is give requested using care, instructions as ordinary failure to all were citing first of Lewis, error. The these is reversible 377 P.2d 37 Wofford neglig upon contributory instruct failure to refusing The trial court did not err in this The defendant cites Continental Bryan’s testimony instruction. Dr. showed ence.1 (Okl.1963), P.2d 492 Ryan, Co. Oil that sterile water could cause tissue necro- principle cited that if there is the often given already sis if was at a site dam- contributory negligence, or any evidence aged and, from multiple injections, as de- negligence may contributory from which be admits, fendant this tends to demonstrate presumed, the issue inferred or must negligence Cosby. as to defendant De- jury. points to left to the The defendant plaintiff’s expert, refers fendant Dr. evidentiary matters to facts various show Fite, to establish the unavoidable accident contributory sufficient make an issue germane was instruction to the issues. First, negligence jury. for the defendant However, testimony merely states that points large injected medi to the amount expert had never seen Atarax cause contending plaintiff cations taken injury, any enough capability but it has plaintiff was should have known that there damage Physicians cause Desk danger arising from excessive use of flatly Reference manual states com- remains, plaintiff medications. The fact pound given subcutaneously. is not to be prescription injections had a valid for these defendant contends trial on demand or “when she felt she needed refusing give court erred an instruc brought it”. This defendant was to answer independent intervening tion cause. administering improperly injection an specific no The defendant cites evidence i.e., precipitated injury, injec which an issue show for the on this matter subcutaneously, given tion was and not as states, nothing else, if evidence required, intramuscularly. Whether or not negligence Cosby of Dr. was sufficient to standing prescription proper, was hospital to an entitle instruction on plaintiff’s injected painkillers use of intervening independent The al cause. excessive, bearing upon was has no leged negligence prescribing injec injection issue of whether that caused requested tions as does rise to inter was injury improperly delivered simply cause condition vening but improper whether the administration there improperly which was acted injury. Secondly, caused the the defend placed injection. ant contends that there evidence plaintiff contributorily negligent be hospital predicates The defendant injections cause she flinched those when arising give error out of the failure to two However, thigh. were administered to her instructions, prohib one that the patient even if the flinched when the needle practicing from medicine and another ited inserted, hospital was the still an remains corporation an indi that a is considered as improperly proceeding for to swerable and to the fair treat vidual entitled same syringe plaintiffs evacuate into the the A re an would ment individual receive. body properly when the needle was not advancing in argument the these view of placed. prohibition the discloses structions de practicing

The defendant tri medicine instruction was contends that the hospital refusing give signed jury al court erred in to un to inform the the was an frequen responsible be held for the avoidable accident instruction. The defend not to hospital cy injections ant states the allowed under the doctor’s defense of unavoid applies prescription properly diag- evi- failure to able accident there is his when Negligence, begins: parative 1. It is actions noticed that this action was filed in "In all brought, arising and tried in December of 1979. The do whether before or hereafter raise, consider, act, applica- not the of this ..." See we do not the after effective date bility Pipeline Montgomery, F.Supp. of 23 O.S.1981 were §§ 13 14 which Amoco Co. v. July (W.D.Okl.1980). effective 1979. 23 O.S.1981 Com- necessitated that was not a nose condition which fundamental issue in the cause. Here, however, requested The care of the defendant prescription. standard in- an fully set hospital are forth in struction and the trial court doctor refused to requested, in- issue instructions. As that instruction. other apparently is unconnected to the struction The necessity for an re- instruction as confusing jury. and would to the issues be quested predicated upon is assumption jury second amounts to a The instruction jury fail to will follow the balance hospital with the admonition be as fair they of the charged instructions are with. person. to a as it would No defendant case, jury generally, The is as in this in- authority is cited to demonstrate reversible giv- structed that they the instructions are occurred these error when instructions en contain all law to applied be in the refused, prejudicial were and no reversible by case and the they rules which are perceived is from refusal to so in- error weigh the evidence determine the facts struct, points thus error on these is re- Additionally, jury issue. is instruct- fused. figur- ed on the factors to be considered in ing damages amount that com- will hospital requested The defendant pensate plaintiff damages in- stating where an injury instruction that assumption curred. The in- that such an may have in more than occurred one man necessary struction is requires that ner, one of negligent which is and one of jury given fail to follow instructions as not, presumed is be which cannot that acting well as their own to increase injury giving arose the manner rise of an because erroneous view liability. jury The instructed was justification giv- the tax law. One for the negligence proof prepon must be ing requested instruction is fact neg derance evidence and that such juries today increasingly are ligence directly must have and proximately impact conscious income tax and its plaintiff’s injury. caused An omission society. necessity in- The of the tax of an instruction covered other instruc only struction can be demonstrated if the tions does not constitute error. Missouri- jury ignore is assumed to their instruction Harper, Kansas-Texas R Co. v. applied that all the law to the cause reason, For same de contained the instructions and con- will proposed fendant’s error of the trial court sider matters their It outside instructions. giving its expectancy instruction life must jury be also assumed that the is tax given is refused. The instruction succinct enough compensate conscious ly notifies the jury plaintiff’s expect life perceived liability tax but so conscious ancy, may the fact she may or not live that of taxation law to know the award is long may longer, live and further that necessity for taxable. The such an instruc- figure life expectancy table not to be grounds, tion rests on narrow requiring proof long. taken she will live that assumptions contrary are ba- which to the requested defendant’s instruction on life machinery system sic of our trial. expectancy given in substance and no error found in rejection the court’s give The refusal to re instructions requested defendant’s instruction. quested is where the not error issue was defendant substantially general also raises as in er- covered give ror the trial Inc., court’s refusal to an in- structions. Linn v. Barnett’s stating any damage (Okl.1972); struction award P.2d 1276 St. Louis-San Fran given plaintiff Fox, to the not Ry. was taxable under cisco 359 P.2d Co. v. (income tax) (Okl.1961); the Internal Revenue A.L.R.2d Code. and Mistletoe point This Court Express Service, discussed this Culp, Middle- Inc. v. brook, supra. requested There we held that the the Without instruc court committed no error when it failed tion jury the cause had this before them give such an on necessary instruction its own all motion the law to arrive at a correct vagueries inasmuch as the damage figure. of the tax code The trial court not did refusing error in the in- commit reversible Executive Director of The Board of Nurse Any prejudice Registration Nursing suffered fail- struction. Education and it ing simply conjectural. is to so instruct contains the information that Clarice eligible Rhodes was not to be licensed in jurisdictions Some have refused to man- the state of Oklahoma. Ms. Rhodes was taxability date instruction on is in that an the employed by individual the defendant necessary improper, all cases and have gave plaintiff who injection plaintiff the the held that the trial court must exercise its alleged precipitated injury. the This letter discretion in accord evidence with the temporary states a license issued was ef- of the case. circumstances Gulf Off April- fective 1971 to July 1971. As Corp., shore etc. Mobil Oil previously plaintiff noted alleged the injury (Tex.App.1982), S.W.2d 171 cert. denied 459 occurred injection given from an on Octo- S.Ct. L.Ed.2d U.S. ber The same information was (1982). In v. General Motors Cor Griffin jury by testimony related to the of the poration, 380 Mass. 403 N.E.2d Executive Director for Administrative Ser- (Mass.1980), A.L.R.4th Court Nursing vices of the The Board. defend- acting upon addressed some of the factors ant improper- contends these exhibits were of that exercise discretion: ly admitted either the of surprise as result nothing “Where there is in the evidence tactics or irrelevancy. on the basis of The taxes, bearing lawyers on and the do not defendant’s authority brief contains no subject jury, mention the in front of the grounds. reversal upon these It is noted subject no on may instruction be plaintiff notify that did the defendant that any subject needed. If on the instruction the Nursing someone from could Board be cases, given is to may be such be testify called to that Ms. Rhodes was not jury sufficient tell the their that ver- gave injection licensed at the time she evidence, dict is to be based that plaintiff. The record out the bears fact there is no evidence before them as to pretrial specifies order a witness taxes, and that taxes are therefore none Nursing from the Board or documentary of their subject business. Where the evidence. A review transcript of the income taxes on the amount ver- readily apparent makes it that counsel on brought dict has been to the attention of both sides of action this knew for well over jury way, judge in serious must year Rhodes that Ms. was not licensed in exercise his best and discre- Further, Oklahoma. Ms. Rhodes testified tion, and frank disclosure that that, in this trial was if the she licensed and subject amount of the verdict not Board did not she li- records reflect was federal may or state income taxation censed, wrong. pleadings they The were the better course. hospital’s raise the failure to issue Although the Court holds that failure to employ properly personnel. trained give the requested taxation instruction trial court admitted evidence Ms. not recognized error it reversible Priddy prior of a the basis inconsistent under judge certain trial circumstances the surprise statement on the basis that may determine the best course is to issue being virtue of issue was shown such opinion an instruction. This is not pretrial. raised at au- absence recognized holding intended to be thority demonstrating error in admission of issuance of such an instruction would be allegation this evidence the of error is re- error. Apparently fused. the information was allegation plaintiff's defendant con relevant de- agents tends error properly reversible taints cause be fendant’s were not trained. jury cause the directly had with them a letter Further the offered evidence bore plaintiff’s marked credibility agent exhibit number 16 and it adminis- during tering Additionally, was taken injection. into room delib the alle- gation surprise erations. The exhibit admitted this constituted evi- into evidence. This entirely by letter was from the dence is the record. refuted 1096 in

Assignments presented authority support error has disclosed no of brief, argument by convincing unsupported infirmity. asserted constitutional As noted on authority, ap- not be considered previously, assignments will presented error apparent further peal brief, unless it is without unsupported by counsel are they that well taken. Paris research convincing authority, will be considered Custer, (Okl. 71 Texas Bank v. when appeal apparent it is not without 1984) McCabe, v. 488 P.2d 468 Bradley they further research are that well taken. Custer, Bank supra. Paris Texas v. defendant, Baptist The Miami It is also contended that Hospital, objections three proposes failing jury court erred to instruct the in this interest awarded action. first statute, the existence of the interest being O.S.Supp.1979 that 12 727 is uncon prejudicial that failure is jury because the prejudgment stitutional and no interest or have would awarded less in the face should post-judgment interest be allowed. knowledge. such is not Interest an ele main, pre In the defendant contends that damages personal injury ment of in a ac personal injury interest cases Piper tion. Schwartz v. 90 Corp., Aircraft attempt grant unliq- anis interest on an Mich.App. 324, (1979); 282 N.W.2d 306 In amount, stating uidated most have states Ill., Chicago, re Air Crash Disaster Near prejudgment indicated that on un- interest etc., (C.A. Cir.1981). F.2d 644 633 7th liquidated improper, citing is amounts 47 fact that interest is an element of dam However, prejudg 19 and 20. C.J.S. §§ ages under Oklahoma law is discoverable ment interest is covered in 47 C.J.S. § statutory from of 12 O.S.Supp. scheme Prejudgment compensates interest 727(2) specifies 1979 in that that section plaintiff compen for the loss use of his damages by when a verdict for reason satory damages the time the cause of personal injuries accepted by the trial accrued judgment; action until date of court, the court add shall then interest money plaintiff to which the is entitled. rendering judgment. Clearly then, leg Harris, (C.A. v. 573 F.2d 873 5th West specifically classify did not islature or im Cir.1978), cert. denied 440 U.S. 99 S.Ct. ply element was an of dam 1424, 59 Additionally, L.Ed.2d 635. such ages. Piper Corp., Schwartz v. Aircraft rules foster settlement of meritorious supra. Defendant’s contention that had attempt claims and stand to relieve jury been instructed would be congestion in system. the court noted It is verdict, added to it would have awarded prejudgment interest has held been money jury less assumes the went outside law, constitutional under Oklahoma Nich ignored the issues the case and D.C., Inc., F.Supp. ols T.I.M.E.— assumption unjusti instructions. The (E.D.Okl.1973), against as measured tenets required presume fied. The court is process due clause of the federal jury followed the instructions and con addition, constitution. such statutes plaintiff's damages light sidered thereof upheld have been jurisdictions other keeping verdict in and ordered therewith. against process when measured the due Symes, Tank Booth Co. v. P.2d 493 equal protection clause and the clause. (Okl.1964). When the instructions correct Roy Co., Inc., Chopper Star F.2d ly damage state elements will not be (C.A. Cir.1978), 1st cert. denied Star presumed jury considered matters Chopper U.S. S.Ct. other those than submitted. Ft. & Smith Appellant’s allegation L.Ed.2d 466. first Moore, W.R. 66 Okl. Co. P. infirmity unsupported by constitutional any authority simple other than the conten The trial court general tion that the rule is followed statute that interest on unliquidated dispute adding under is im interest after the verdict was amounts ren- proper. dered, Cursory issue examination discloses submit the to the statutory authority upheld been as an element of would not have against challenges, these comported statutory our research with the mandate.

1097 hospital contends that individual corporation paid only by The defendant the is the equal protection by clause is offended the against debtor while interest a governmental governmental distinction entities by between unit must be borne all governmental private parties, taxpayers governmental that unit. There judgments question entities are assessed interest on can be no purpose but that the to against by them at a lower rate of from be legitimate served the is 6% classification the date the suit commenced rather and the by legislature means the drawn to than achieve rationally it are related legit- 10%. to the imate state end. Classifications are to be First, the defendant asks that the set only they aside if are solely based on distinction between a citizen and the state reasons totally pursuit to the unrelated of class, suspect initiating be determined a goals only the state grounds if no can strict scrutiny examination thereof. Such be justify conceived to them. Clements v. a contention is far outside traditional 957, Fashing, 2836, 457 102 U.S. S.Ct. 73 analysis. Equal bounds of constitutional (1982), L.Ed.2d rehearing 508 denied 458 protection requires analysis scrutiny strict U.S. 103 73 S.Ct. L.Ed.2d 1404. legislative only of a classification when the equal protection No violation exists categorization impermissibly interferes differentiation between citizens and the right, with the exercise of a fundamental state in 12 O.S.Supp.1979 727. § right uniquely private of a nature such as In upon relation to the judg- interest right vote, to interstate ment and verdict travel, established under O.S. rights, and first amendment or a Supp.1979 727(2), defendant hospital operates peculiar § classification next contends statute was errone- disadvantage suspect alienage, class: ously by held court to race, trial be retroac- ancestory. Massachusetts Board tive, properly and thus interest should have Murgia, Retirement v. 427 U.S. of S.Ct. been assessed under O.S.1971 (1976). § L.Ed.2d 520 Obvious The Damages defendant cites C.J.S. ly, the suspect Court is not faced with a 92(1) p. 986 for the premise interest require § classification such would as strict prospective only. statutes are This section scrutiny of the legislative classification. applicable face as it refers to its In the of a absence classification where interest allowed as dam- “[C]ases requiring scrutiny, strict legisla economic statute, ages, discussed, ...” Under our tion upheld against must be equal pro an is not interest assessed assessed as tection legislative attack when means damages. specifically This Court has held utilized are rationally legimate related to a 727 directs assessment governmental indeed, purpose; type time suit is com- from the legislation it a presumption carries with menced to the of the verdict date notwith- rationality that only by could overcome standing the fact that suit was commenced a clear showing of arbitrariness and irra prior of the act to the effective date on the tionality. Indiana, Hodel v. 452 U.S. procedural basis that the rather statute (1981). S.Ct. 69 L.Ed.2d 40 Volkswagen than substantive. Fields rational basis standard review is rela America, Inc., A.L.R.3d relaxed, tively recognizing the judiciary’s (Okl.1976) Blair, and Benson v. drawing awareness that the of lines that prejudgment P.2d 1363 Thus create peculiarly legislative distinctions is a provid- interest is at the to be assessed rate task, one, and an unavoidable that. ed statute at the time the verdict and Massachusetts Board Retirement v. err in affixing trial court did not so Murgia, supra. distinction drawn judgment. that interest to the government statute is between its citizens. pre Lower interest attaches to a similar vein defendant hos judgment against pital state objects post- to further the assessment of legitimate purpose preserving public speci rate of interest at the 12% fisc. 727(2) against Interest on a fied in the 1979 amendment regard In this de- judgment. the entire Okl. 209 P. 417 Obviously then referring post-judgment inter- the trial fendant is court did not err in refusing to verdict for aris- prejudgment est both the reduce the award of person ing prejudg- and from injury specified in the statute. judg- included in the ment interest thereon appellant The contends that by the court. ment rendered trial This damages were excessive and resulted from specifically Court has denied this claimed passion and prejudice requiring either a Special error. Messier v. Simmons Gun remittitur or a new trial. A review of the ties, Inc., (Okl.1984); Walker plaintiff record discloses lost the skin from Co., v. Francisco Ry. St. Louis — San thigh underlying her and the subcutaneous (Okl.1983); P.2d Holland v. Dolese 2 n " tissue an area roughtly by 7". This (Okl.1982). P.2d 317 The trial court wound’s required treatment that it remain correctly post-judgment allowed open period for a multiple weeks before upon the entire which included being graft. closed with a skin The area is prejudgment the amount of the verdict and permanently numb and the scar is obvious interest, and the offered error is refused. ly disfiguring. Before jury a verdict of a In the last of the proposi- interest related will be set ap aside as excessive it must error, tions of appellant contends the pear that the verdict is so excessive as to trial court in failing erred to reduce the mankind, blush, strike at first being prejudgment amount of interest under its beyond all measure unreasonable and out equitable powers. inherent It must be not- rageous as manifestly such as shows that ed that legislature the mandate of the jury passion prej was activated and found in 12 O.S.Supp.1979 727 states § corruption. udice or Bridge Austin Co. v. judgments of courts of record shall “[all] Christian, (Okl.1968). 446 P.2d 46 Under (emphasis added). bear interest ...” Sub- this standard of review the verdict of the section 2 states “... in rendering court jury subject is not to remittitur or vacation judgment shall add interest on said verdict for a new trial. The trial court did not err percent (10%) at the rate of per ten year in refusing to disturb the verdict. from the date the suit was commenced to Appellant’s last error arises out of verdict, (emphasis added). date of ...” the severance of defendant’s counter-claim The uniformly word shall is held to be an unpaid medical bills. This claim arises imperative jurisdiction. command plaintiff from treatment of the after Davis, Davis (Okl.1985): v. 708 P.2d 1102 injury occurred. No contention is raised on “The term ‘shall’ is a word of command appeal improper. this severance was or mandate, compulsory with a per- Appellant claims that there was no final emptory meaning. It denotes exclusion disposition of all the issues between signifies discretion and an enforceable parties and thus the trial court erred in duty, especially when public addressed to entering judgment upon jury verdict. officials....” 708 P.2d 1102 at argument statutory builds F.N. 23. declaration that is the final “[a]

The trial rights court was commanded determination of the by legislative action”, mandate to prejudgment add pre O.S.1981 and the § interest to general the verdict. cept As a rule that there can be but one judg final equity follows the law and where a party’s ment in an action. J.A. Tobin Const. Co. rights statute, are defined equity Bank, (Okl. Grandview P.2d 81 without authority modify 1966). McDowell, or unsettle Loy 85 Okl. rights. those (1922) Polk v. Oklahoma Alcoholic P. 1089 judg states a test of a final Beverage Board, Control 420 P.2d 520 ment is jurisdic whether or not the court’s on, As stated early jur in this tion has been exhausted as to matters de isdiction, no justified court is ever in invok cided and there can be judg but one final ing equity maxim of purpose for the of ment in an At action. the time the counter destroying legal rights. York Trigg, 87 claim was severed the trial of the action judg- O.S.Supp. claim. before this Court is whether 12 only the tort consisted retroactive, finally prospective verdict determined 1979 727 has jury ment on the jurisdiction as to hospital argues exhausted the court’s effect. The action, trial, then those issues applied prospectively must be —the final as to pending. The right. Apparently, pend- because decided. for trial those matters Severance claim, ing majority counter has left this the matters considered circumscribed Because, hazy. my issue somewhat did not err in that action. The trial court opinion, prejudgment postjudgment issuing Ap- verdict. change interest rates at the effective date pellant’s argument equitable raise does setting each amendment to the rate stat- which the Court determines considerations utes, prejudgment and because both fairly by staying execu- would be resolved postjudgment widely interest rates have affirmed until judgment tion of the here 1971,1 fluctuated since we should address judgment, such time as the defendant has this issue now. com- any, if for the medical services which If prise the counterclaim. defendant ob- THE RATE INTEREST ON ALL EXIST- judgment

tains a on the counterclaim it is ING JUDGMENTS IS CHANGED hereby ordered that execution on both FROM THE EF- simultaneously. PROSPECTIVELY judgments shall issue DATE THE AMEND- FECTIVE OF in being There no reversible error the MENT TO THE STATUTE AUTHO- demonstrated, judgment judgment the on RIZING THE RATE AFFIRMED, verdict is and it is ordered that execution on that be question a of whether state statute hereby stayed pending is ordered reso- changes applicable which rate inter- lution of the counterclaim. judgments est on or verdicts should be retroactively,

applied prospectively, or DOOLIN, C.J., HODGES, from the effective date of its modification KAUGER, LAVENDER, ALMA litigation.2 In a fruitful field for been SUMMERS, JJ., WILSON and concur. jurisdictions, in the absence of no several intent, legislative amend- clearly contrary KAUGER, J., concurring files a applied pro- ments to interest statutes are DOOLIN, C.J., opinion in which however, majority, have spectively. The WILSON, JJ., ALMA HODGES and espoused the view because join. obligation, statutory is a with tort actions OPALA, J., (by concurs in result prejudgment or right to either receive separate opinion). legisla- dependent on postjudgment interest judg- prescription, interest rates on tive SIMMS, J., separate (by dissents re- injury should personal ments in actions opinion). during statutory changes which occur flect KAUGER, Justice, concurring, with obligation pay pendency DOOLIN, Justice, whom Chief HODGES premised on This rationale judgment. WILSON, Justices, join: and ALMA damages arising notion that a claim unliqui- personal injury action from a Although majority I concur with the that the defendant can- dated in the sense opinion, it has failed to one of the answer know, prior judgment, precise not questions squarely presented by appel- may required pay. lant, he/she be amount Baptist General Convention Oklahoma, d/b/a/, claims for in tort actions Baptist Hospital. Because Miami it, question unliquidated, As are at common law puts now Judgments Changing Ver- Appendix on Rate of Interest See A. dicts,” (1985), for citation of 41 A.L.R. 4th 694 Annot., "Retrospective Application 2. See and Ef- cases. Allowing fect of State Statute or Rule Interest part damages.3 was not as a stitutionally-shielded awarded accrued or vested hybrid adjudicated obligation.4 The more recent trend is a retro- Tim spective/prospective application changes Sunray mons cited DX Oil Co. v. Great Corp., Lakes Carbon the interest rate based the effective (Okl.1970), applicable proposition for the that subse rate-changing date stat- quent changes statutory rate should ute. vary paid rate of interest to be judgment. A. rehearing On Sunray, question PAST, IN THE INTEREST RATES HAVE concerning was raised post- whether the BEEN BASED ON WHETHER THE interest rate on TO RIGHT RECEIVE INTEREST changed breach a written contract was THE ON JUDGMENT AIS VESTED subsequent rate- amendment RIGHT OR MERELY A MINISTE- setting Sunray statute. The held court RIAL MATHEMATICAL MODE OF pre-existing that the interest rate on the PROCEDURE. changed, should because leading There four are cases Okla- do apply retrospec- so would statute problem homa which have discussed tively. applied The court the rule that a the rate of impressed interest to be on a operate prospectively statute should in the

judgment setting after the statute the rate legislative absence of clear intent or con- been Royal amended: Timmons v. trary implication.5 Although this is es- an Co., 589, (Okl. Globe Ins. 713 P.2d 594 construction, statutory of tablished rule an 1985); America, Volkswagen Fields v. exception involving for statutes of modes of 48, Inc., 555 (Okl.1976); P.2d 63 Benson v. procedure recognized. also An Okla- Blair, 1363, (Okl.1973); 515 P.2d 1365 Blair, homa example is P.2d Benson v. 515 Sunray DX Oil Co. 1363, v. Great Lakes Car (Okl.1973). 1365 329, Corp., (Okl.1970). bon 476 P.2d 346 application Benson also focused on the These cases reached inconsistent results 727, although 12 prejudg O.S. 1971 § perhaps Sunray because Timmons and postjudgment ment rather than interest arising were eases from contract while was involved. There the court found Fields Benson each involved actions legislative expressed implied intent or personal injuries. language required retrospec used v. Royal application Timmons Globe Insurance tive the interest rate.6 Ben Co., (Okl.1985), 713 589 damages P.2d adopted were son the rationale in the expressed against awarded leading postjudgment case, the insurer for its bad interest Foster pay (R.I.1962),7 faith refusal to valid a claim. One 179 Quigley, v. A.2d 494-95 appeal pre- judgment issues was whether the an that interest a action judgment postjudgment damages interest person property rates not of the in effect judgment at the time of right could be at substance action but by subsequent legislative varied judgment amend- taches to the after the substan ments. The right adjudicated. court held Timmons tive has been The Ben rate, payment, until the similarity date of court to the imposi was the son noted costs, one in at effect the time of legislative be- tion and held that the Royal cause Globe was vested with a trial con- directive to the court to add interest to Products, Barker, Blair, 1363, Sylvania (Okl. Electric Inc. v. 228 6. Benson P.2d 842, (1st Cir.1955), 1973). F.2d cert. den'd 350 U.S. (1956); Sisney 76 S.Ct. 100 L.Ed. 854 Smalley, (Okl.1984). 690 P.2d jurisdictions considering question 7. Most this adopted Quigley have doctrine. See Holmes Co., Royal 4. Timmons v. Globe Ins. 713 P.2d Bateson, (D.R.I.1977), F.Supp. (Okl.1985). post Quig for citation Rhode Island Foster v. Sunray DX Oil Co. v. Great Lakes Carbon ley cases. Corp.,

HOI merely right ministeral exclusively substantial but an inci- was by legislative dent attached thereto procedure.8 fiat mode of right adjudicated,11 after the has been nei- court, finding there The Timmons after enlarging impairing ther nor substantial of inter- the amount a vested was rights, prescribing but rather the methods adjudicated obli- impressed an est procedures enforcement,12 gation, distinguished Benson on the on the can changed any ques- that it failed to address the grounds time.13 Because at common law interest challenged interest was tion of whether an was not element recovera- Nonetheless, right. a vested or accrued personal on actions of tort for inju- ble Benson held that the addition of interest ries,14 statute, purely but is a creature of procedural duty of the trial court was a historical review is essential. right. a substantive Arguments are often offered that apply should not new rate to unsat B. judgments isfied entered the effec before AND BOTH PREJUDGMENT POST- statutory change tive date because a IN INTEREST AC- JUDGMENT judgment is a contract or is in the nature of TIONS FOR PERSONAL INJURIES rights a contract with the and liabilities of ARE STATUTORY OBLIGATIONS fixed at the time procedural/substantive Supreme Other than the entered. The United States Court distinction, disposed argument century apply whether to interest rate almost ago Morley Michigan v. Lake Shore & changes pre-existing judgments was of- 162, 169-70, 13 Ry. Southern U.S. analyzed many ten older cases deter- 56-57, 36 L.Ed. mining S.Ct. judgments whether interest on Court, in its of a York discussion New obligation im- a matter of contract here, Benson, statute similar to the one held that If, posed by as in a court statute. right judgment the to interest on a for view, takes the latter then the rate is sub- legislative personal injuries is a matter of ject by to later modification statute.9 On pointing of contract out the discretion not hand, judg- the other if the interest on a of a absence of essential characteristics obligation, ment is considered a contractual minds, meeting consider contract —a of the obligation cannot the rate is a vested which ation, mutuality, parties. and assent of the subjected to modification. The be later length: this issue at The Court discussed disuse, contractual has fallen into and view action, a the cause whether major the has been criticized because of “After contract, a tort or broken judg- differences between contracts and itself payment, shall decide, prescribing interest till majority ments.10 If we as do the merged judgment, into a have been jurisdictions, judgment that interest on a accrue the whether interest shall damages person property for or is not a to (R.I.1962); Inc., Battog Knight Quigley, Newspapers, 8. 11. Foster v. 179 A.2d 494-95 See also v. 381 527, 19, Inc., (1969). Battog Knight Newspapers, Mich. 164 N.W.2d 23 381 see also v. 19, 527, (1969). 23 Mich. 164 N.W.2d Superior Maricopa County, 9. McBride v. Ct. of 193, (1981). 130 Ariz. 635 P.2d 178-79 Bateson, F.Supp. 434 12. See Holmes v. (D.R.I.1977) right citation of Rhode Island create a 1391 for 10. criticism that contracts another, party duty post Quigley in one and a while a cases. Foster v. judgment personally compel does not the debtor Also, contract, judgment to act. unlike a a does Young, Amer. R. 95 N.Y. O’Brien v. 47 parties, and not demand the free assent of the (App.1884). enforcement, by way of failure to fulfill a con- obligation jail, to while tractual cannot lead (Okl. Sisney Smalley, P.2d comply judgment refusal to a can be so with Tweedie, 1984); A.2d 443-44 Batchelder v. Note, Ap- punished. See "Creditors Remedies: Boston, (Me.1972); 211 Mass. Cochran plying Statutory Change of Interest a in the Rate (1912); Ry. & B. Air Line N.E. 1100-01 Atlanta Arizona,” Preexisting Judgments to 25 Ariz. Brown, (1908). 48 So. 158 Ala. L.Rev. a determine judgment prudent is matter not contract it is to raise or parties, but legislative the between lower15 the interest rate time to time free, discretion, so as which is far the compensate fairly judgment either to credi- is con- constitution of United States tors, to conform with current economic cerned, provide penal- to interest a for as standards, expedite litigation, or to the new liquidated nonpay- ty damages for the rate apply should from the effective date of ment of the do judgment, not to so. change outstanding to judgments. all statute, provision by When such is made hybrid This construction is a application is, judgment course, the owner of actually because it is retrospective neither prescribed to the interest entitled so until prospective. nor A application retroactive received, payment is or until the state apply would the new all outstanding rate to shall, discretion, the exercise its judgments running from the date of the declare that such interest shall be judgment even if it were entered before the changed or cease to accrue. Should the effective date of rate. con- statutory damages new This nonpayment of a state, judgment prospective be struction is a application determined ei- part, rate, or in ther whole e.g., owner applies new the new rate after to will entitled receive and the judg- effective date to all outstanding right damages have vested in the which ments —before that date interest accrues up have accrued shall date the old rates.16 language Where the of a change; legislative but after that time plain clear, meaning statute is rights damages are, his as interest as statute must be enforced as written.17 first judgment, as when he obtained his Here, language of the statute contains just legislature what the chooses to de- exception no accruing prior for actions He no clare. contract whatever on the effective date the statute. subject with defendant Although arguably there is a valid ratio- receive, judgment, right his differentiating nale for between interest on obligation pay, defendant's is to as contracts interest on actions for dam- damages, just what the state chooses to ages, none of the Oklahoma stat- prescribe.” (Emphasis supplied) utes make such a except distinction when of a creditor to inter- specified rate in the con- est aon is a legislative matter of statute, O.S.Supp. tract. The Oklahoma grace granted compensate 727(A)(1), predecessors and its have creditor sustained non- always provided if the rate of interest payment judgment. Here, just contract, is specified appli- in the rate is judgment right creditor has no to inter- judgment cable to the debt and that it will except est legislatively that which is de- specified be so creed, journal entry judg- in the of judgment right debtor no Perhaps limitation of ment. this is the interest so because of ap- rate to be plied in except language Morley construing the future for of that ordered a similar by legislature. legislature Should the New York statute.18 597, Flynn, 15. In year, Swanson v. N.D. 31 N.W.2d dollars one and after that rate for a 320, (1948), Supreme sum, the North greater longer Dakota or less or for a or shorter approved Court the reduction of rate time; of nothing but herein contained shall be judgments previously interest on find- obtained any way any so construed as to in affect ing impairment no of contract. obligation pas- contract or made before the sage of this Act.” Mayor City 16. Council v. Kelso Baltimore 1877, 417, 468, chap. pp. New York Laws 477: 267, Corp., 406, (1982). 294 Md. 449 A.2d judgment money, 1211. A sum "§ for a Co., Phillips 17. Matter record, Petroleum 652 P.2d rendered in a court of or not of 283, record, judgment or a rendered in a court directing payment money, record bears 1879, 18. chap. New York p. Laws 598: interest from the time when it is entered.” upon "§ 1. The rate of interest loan or any money, goods, things forbearance of or in upon action shall be six dollars one hundred

H03 support However, I in the Oklahoma homa. Nor do find the rule that statutes in pre- derogation proposition for the are to strictly Constitution19 construed is inapplicable interest on an postjudgment the laws of they this state — are to person property be construed liberally action for in order to objectives achieve their rights promote this Court held in and to jus- are vested because tice.22 proce- that interest calculation Benson changes affect the rem- dural. Procedural Here, because the framers had the bene- right,20 and there is no edy rather than the fit of the New York statute and of the right particular pro- any mode

vested Supreme United States Court’s decision in In expression cedure. the absence of an I Morley, must right conclude that the intent, ap- contrary procedural statute receive, creditor to and the plies equally pur- to all actions within its obligation pay, debtor to view, accruing those both before and after does not rest in statutory enactment.21 contract. Instead it is an obligation im- posed by law with the to receive Generally, because a constitution is not entirely contingent upon legislative state, beginning in the of law it as- prescription. prejudgment Because the existence of sumes a well understood postjudgment interest are in the nature of system of is to law which remain force. statutory damages where the interest Accordingly, a constitution is to be con- specifically provided by contractual light strued of common law. The agreement, impairing a state without presumed framers are to have intended no obligation interfering of contracts or with change from nor innovation on the common rights, may legislate vested or accrued appears implica- law than from reasonable increase or reduce the rate of interest on tion, express or from declaration judgments previously obtained its Constitutional framers themselves. courts.23 many jurisdictions the rule is that statutes derogation strictly thereof are to be con- Regardless analysis used—sub- law, strued. Since the common stantive/procedural or contractual/statu- statutory modified constitutional and tory majority jurisdictions allow —the law, judicial decisions, and the condition pre-existing judgments the rates on to be people, changed statutory wants of the has remained in as the new rates become general underlying policy force aid of the statutes of effective.24 The Okla- this Const, provides: provides: Okla. art. Title 25 O.S.1981 law, common statutes in ‘The rule of the repeal ‘The of a statute shall not revive a strictly derogation strued, statute, thereof are to be con- previously repealed by statute such application has no to the laws repeal any right, nor shall such affect accrued state, liberally are to be construed with which penalty proceedings begun by incurred or objects promote a view to effect their and to repealed virtue of such statute." justice.” Trinity Broadcasting Co. v. Leeco Oil Criqui, State v. 105 Kan. 185 P. P.2d (1919); Cooley, see also I "Constitutional Limi- tations," (8th 1927). p. Ch. ed. 21. Oklahoma Water Resources Bd. v. Central Dist., Conservancy Okla. Master Blair, 1363, P.2d 23. See Benson v. 515 1365 (Okl.1969); Shelby-Downard Asphalt 756 Co. v. (Okl.1973), Volkswagen in Fields v. followed of 237, Engart, (1918). 67 Okl. 170 P. 708-09 48, 1976), America, Inc., (Okl. 63 Supreme Court held the statute to be Oklahoma provides: 22. 12 Title O.S.1981 2§ affecting procedural not a substantive law, ‘The common as modified constitu- damages. of clothed with the indicia Missouri law, statutory judicial tional and decisions County, 249 U.S. & A.L. & M. Co. v. Sebastian people, and the condition and wants of the 172, 202, 538, 170, (1919); 39 S.Ct. 63 L.Ed. 542 general shall remain in force in aid of the Brown, 494, Wyoming Wyo. Bank v. 7 53 P. Natl. Oklahoma; statutes of but the rule of the (1898). 291 law, derogation common thereof, that statutes in construed, strictly shall be shall not applicable any general apply statutory be homa; to statute of Okla- 24. States which amended Arkansas, judgments liberally pre-existing but all such statutes shall be rate to Florida, include Idaho, Illinois, Indiana, promote object." Georgia, Ken- construed to their 1104

position equal discussed Shook Fletcher force all judgments was & for outstand- Rigging ing 1, 1980, v. Central & Con July Insulation as of date effective [the 1383, (11th 684 tracting Corp., F.2d 1388 of the as well as for new amendment] here, Cir.1982). Shook, applica- In as judgments 1, entered July after 1980”.25 specifically not ble statute did address The same result was reached in Noe v. apply judg- rate should what interest 346, Chicago, 56 376, I11.2d 307 N.E.2d 379 existing prior ments amendment of (1974). The Noe Court determined: that statutory language rate. The apply prospectively the new rate should (1980) Georgia was Code 57-108 pre-existing judgments; applica- that this provid- as the statute. It same Oklahoma not, sense, tion any was a retroactive “All shall judgments ed: ... bear interest application statute; and, of the chang- that per per cent ... the rate twelve ing the interest rate on does year.” interpreted language court rights not interfere already with or accrued stating: literally, vested.26 Another case in which this rea- purpose increasing “The for rate soning adopted is was v. Superior McBride accruing judgments was to Maricopa 193, Court 130 County, Ariz. acknowledge an increase interest rates (1981). 635 P.2d 178-79 rebutting general bring rate inter- argument changing that the rate after judgments parity on est into with other date of applica- retroactive comparable market If rates interest. statute, tion said, the McBride court legal judgments rate interest for “The statute at the time the judgment significantly pre- remains lower than the provided interest; did 6% rate 10% vailing interest, market rates then not take effect 14 until December 1979 and judgment-debtors strong would have a was effective only after that date. It was delay paying judgments incentive to their prospective retroactive but after long possible capitalize as in order to date effective of the statute.”27 Judgment-creditors, on this difference. analysis, In the final need we not find turn, increasingly compelled would judgments levying, attachment, to resort to and oth- breach of an judicial merely proce- oral contract is er judg- remedies to enforce their dural or that it ments. contractual. The judgment-debt- This windfall to appropriate most ors and judgment-creditors burden on construction and the retrospective state courts are a new rate is not a application state of affairs Georgia reasonably could seek to interfering statute with vested policy avoid. apply rights These concerns with is, fact, accrued pro- but Massachusetts, tucky, Missouri, Maryland, 365, Mississippi County, Mon- 69 Ark. 63 S.W. 807- tana, York, Dakota, Carolina, (1901) 739, 849, New North South OS aff'd U.S. 188 23 S.Ct. 47 Dakota, Wyoming. (1903); South Wyoming Wisconsin and Shook L.Ed. 677 Natl. Bank v. Brown, 494, Rigging Wyo. (1898); & Fletcher Insulation v. Central & Con 7 53 P. 291 Erskine 1383, Hartwell, tracting (11th Corp., Properties, 684 F.2d Florida 1388 Cir. Inc. v. 451 So.2d 1982); (Fla.App.1984); Freight 976 Southeastern Ferris v. Lines v. Michelin First Nat. Bank & 476, 174, 357, Corp, Tire Trust 96 279 S.C. 303 Wis.2d 292 N.W.2d 361 S.E.2d 860-61 (1983); Annot., (App.1980). 267, "Retrospective Corp., Ap- See also Baltimore v. Kelso 294 Md. 406, plication (1982); A.2d and Effect of State Developers, 449 409 Statute or Rule Associated Allowing Changing Brookings, (S.D.1981); Interest or Rate Inc. v. of Interest 305 N.W.2d 848-49 Verdicts,” Judgments Dept, Indiana A.L.R. 4th 694 Revenue v. Glendale-Glenbrook Associates, 217, (Ind.1981); 429 N.E.2d Senn Bank, 551, v. Commerce-Manchester 603 S.W.2d (Mo.1980); Ridge Ridge, & Shook Fletcher Insulation Co. v. S.W.2d Central (Ky.1978); Rigging Contracting Chicago, Corp., & Noe v. 684 F.2d 56 Ill.2d (11th Cir.1982). (1974); 1388-89 N.E.2d Flynn, Swanson v. (1948); People N.D. 31 N.W.2d ex Emigrant Sexton, Chicago, rel. Industrial Bank Noe v. Sav. 56 Ill.2d 307 N.E.2d 57, (1974). 469, (1940); N.Y. 29 379 N.E.2d 471 Idaho Gold Dredging Corp. Co., v. Payette Boise Lumber 54 765, 407, (1934); Idaho 37 P.2d 412 Superior 27. Maricopa McBride v. Court Coun Stanford Coram, 288, (1903); 9, 28 Mont. ty, supra. P. 655-56 Read see note

H05 rather, procedure fairly date of the new more main- from the effective spective quo. If Shook, Noe, provide tains the status the Court contin- and McBride rate. finding cling doctrine, for ues to to the Timmons proper prototype ignore legislative statute varies will the unmistakable di- rate of the amended interest rective, postjudgment unraveling legisla- rate and risk prejudgment attempt comprehensively date of ture’s to deal prospectively from the effective with tort-related each amendment. issues. underlying awarding Generally, a case does not rationale become final compensate prevail- appeal until the appeal

interest at all is to expenses According in exhausted.31 ing party for the incurred Walker St. action, delay in bringing Ry. receiv- Louis-San Francisco 671 P.2d 672, (Okl.1983), ing damages, prejudgment for the loss of the money interest 1986, principal.28 September 21, should use of the Okla- be calculated from 1973, (the filed)32 Legislature included amendments to date the homa suit was until 1, 1979, 1, part popularly-denom- of its October at 727 as After October 6%. § 1979, legislation.29 judgment, inated Tort Reform At the until the date of interest amendment, judgments per time of the bore should run at the rate of annum. 10% Thereafter, per merged interest at the rate of annum even the accrued amount 15% average treasury judgment though the bill rate was and the interest continued to per year.30 legislative per year obvious run on the entire amount at 12% 6.03% 1, purpose expressed April date, to link until 1982. After that inter- § changing judgment figured interest rates with economic con- est should be 1, overriding legislative January ditions. The intent is an annual rate of until 15% 1, 1987, desirability tying January interest rates on 1987.33 After the interest fluctuating judgments rapidly judgment financial should run at If the 10.03%.34 realities, paid during 1987, penalizing and to avoid either the then the interest on 1988, judgment January, debtor or the creditor. should equal may Because the debtor invest be calculated at an annual rate to the average Bill Treasury the amount of the at the contem- United States rate of porary preceding year plus per- four money pending appeal, cost of nei- calendar centage points.35 hardship ther suffer undue A APPENDIX legislative prejudgment postjudgment indicium of Clear intent to make following responsive marketplace comparisons more to the is reflected in the (Thorndike Tables, 1, (Warren, Banking p. Encyclopedia 2-3 and Financial Ch. Lamont, 1987)): Gorham & Zink, Jersey City Although 133 N.J. Law 44 A.2d this statute has been amended numer- (1945); Stubblefield, Ky. Farmer v. provision ous times this has remained un- Saber, (Ky.1944); 180 S.W.2d 405 changed. Saber v. Mich.App. (1986); 379 N.W.2d 478-79 O.S.Supp.1982 provides per- 33. Title 12 § 727 Parsons, Mich.App. McGraw v. part: tinent N.W.2d judgments "All except of Courts of record Compensation Workers’ Court shall 24, 1986, bear in- 29. See ofAct June ch. 1986 Okla. (15%) percent terest per at the rate of fifteen Laws 1524. year, ...” 1, supra. 30. See note 727(B) O.S.Supp.1986 provides: 34. Title 12 section, purposes "B. For of this Gray, 31. Ellison v. equal shall be average at an annual rate to the Treasury preced- United States ing Bill rate of the provides 32. Title 12 pertinent O.S.1971 727 year calendar as certified to the Adminis- part: trative Director the Courts the State "When a verdict for reason of regular day Treasurer on the first business personal injuries court, accepted by the trial January year, plus percentage of each four rendering judgment the court shall add points.” interest on said verdict ... from the date the suit was commenced to date verdict.” Id.

Projected Statutory Prime Rate Okla. Stat. Rate Rate — High Low Pre Post T-Bill Rate T-Bill +4% 10.0% 4.348% 5.25% 6.75% 8.348% 6.0% 10.0% 4.071% 5.0% 8.071% 6.0% 6.0% 10.0% 7.024% 6.0% 11.024% 10.0% 6.0% 8.75% 7.873% 10.0% 11.873% 12.0% 6.0% 10.0% 5.283% 7.0% 10.5% 9.283% 6.0% 10.0% 4.296% 6.25% 7.25% 8.296% 6.0% 10.0% 6.063% 6.5% 7.5% 10.063% 6.0% 10.0% 9.122% 6.0% 11.75% 13.122% 6.0% 12.0% 12.071% 11.5% 15.75% 16.071% 10.0% 12.0% 15.681% 21.5% 19.681% 11.0% 10.0% 12.0% 10.926% 15.75 20.5% 14.926% 10.0% 11.5% 17.0% 15% 8.013% 12.013% 10.5% 11.5% 15% 8.960% 12.960% 10.75% 12.75% 15% 8.90% 12.90% 9.5% 10.75% 15% 7.49% 11.49% 15% beg.

variable 11-86 Jan. 9.5% 6.03% Mar. 9%

Apr. 8.5% 10.03% July 8.0% M.D.’s,1

OPALA, Justice, concurring in result. Kugler, There I counseled that the teaching Liepelt2 adopted be For the explained reasons I cannot mandatory use trials conducted after our fully today’s pronouncement concur nor Middlebrook,3 do today I mandate judgment. the court’s position. recede I II FAILURE TO INSTRUCT ON NONTAX- WHEN A COUNTERCLAIM TENDER- ABILITY OF A PERSONAL ING ISSUES RELATED THE TO INJURY AWARD TRANSACTION OR OCCURRENCE The transcript of proceedings reveals IN LITIGATED THE PLAINTIFF’S neither a mid-trial reference to the tax CLAIM REMAINS UNDE- consequences TERMINED, plaintiffs’ recovery A DECISION UPON A nor request instruct on non- PLAINTIFF’S CLAIM DOES NOT taxability personal CONSTITUTE A of a “JUDGMENT.” injury award. The trial of place took suit our man- hospital correctly contends that before Imler, date in Middlebrook v. Tenny & severance its unpaid counterclaim Okl., (1986). Imler, Tenny Kugler, 3.Middlebrook M.D.’s, supra note 1. Railway Company Western Norfolk Liepelt, 444 U.S. 100 S.Ct. 62 L.Ed.2d

H07 Imler, brook v. plaintiffs’ bills from the tort claim Tenny Kugler, medical & M.D. 's, Inc., Okl., to the rendition constituted barrier of a 572, (1985). 713 P.2d judgment plain- on the verdict for the is so force of

tiffs. This because

provisions judg- in 12 O.S. 1981 6814 no pronounced may

ment until all of the parties

issues between the have been re- When a counterclaim

solved.5 which

tenders issues for resolution that are in-

terrelated with the transaction or occur- litigated plaintiffs rence in the claim re- Jacqueline BARFIELD, Appellant, A. undetermined, mains a decision on the plaintiffs claim alone cannot constitute a Judy BARFIELD, Beth Executrix of “judgment.”6 Barfield, Deceased;

Estate of Robert E. III City and Kansas Fire & Marine Insur Company, corporation, ance Appel THE RATE OF POSTJUDGMENT IN- lees. TEREST TO BE APPLIED TENDERS ISSUES No. WHICH MUST 62801. BE LITIGATED AFTER REMAND Supreme of Oklahoma. Court

Judicial postjudgment determination of applied interest rate to be computa and the 21, July 1987.

tion of the total amount of interest that is Rehearing 29, Sept. Denied due today affirmed are remand.7 I litigated issues to be after hence concur in the court’s abstention from

reaching settling these issues at this

time.

I would direct the trial court’s “judgment” decision here under re- —the

view—be vacated rather than stayed. Be- premature

cause of its rendition in ad-

vance of the counterclaim’s determination, presently cannot stand.

When all the hospital’s issues raised resolved,

counterclaim have been the trial may

court then reinstate its

jury verdict plaintiff. for the

SIMMS, Justice, dissenting:

I respectfully dissent for the reasons ex

pressed my dissenting opinion in Middle provisions 4. The of 12 O.S.1981 681 are: 7. Missouri-Kansas-Texas Railroad Co. v. Ed Okl., wards, (1961); Baptist "A 401 P.2d the final First determination of the rights Church, Okl., 260, Holloway, in an action.” Bristow v. 402 P.2d Okl., (1965); McDougal, Reardon v. 524 P.2d 194, Hurley Hurley, 191 Okl. 127 P.2d 147 (1974) and Oklahoma Natural Gas Co. (1942) Methvin, and Methvin v. 191 Okl. Williams, Okl., (1982). 639 P.2d (1942). 127 P.2d 186 also, Club, Gupton See v. Western Kennel Lathrop,

6. Dennis v. 204 Okl. 233 P.2d (1944) Okl. Baldwin v. (1951); Seminole, City Fowler v. 196 Okl. Okl., Collins, (1971). P.2d (1945) Wilson, 163 P.2d 526 and Hutchison v. 136 Okl. 276 P. 198

Case Details

Case Name: Fleming v. Baptist General Convention

Court Name: Supreme Court of Oklahoma

Date Published: Jun 23, 1987

Citation: 742 P.2d 1087

Docket Number: 54711. (54712, 54856 and 54857 consolidated.)

Court Abbreviation: Okla.