*2 THOMAS, C.J., ROSE, Before ROONEY CARDINE, JJ., LANGDON, Dis- Judge. trict ROSE, Justice. appeal grows
This judgment out of a upon jury’s entered a verdict which finds though appellee that even Ed Harwood battery ap- committed an assault upon pellant Goggins September Jack assault were not “a injuries cause of the sus- by appellant, jury’s tained” further finding “[wjithout considering” its an- questions swer to other on the verdict form, the amount which it believed would Plaintiff, “fairly compensate the Jack E. Goggins, for alleged injuries” his was “One $100,000.00.”1 Hundred Thousand
FACTS Plaintiff-appellant Goggins alleged defendant-appellee but Harwood denied that Harwood committed assault and battery upon Goggins striking him on he, Goggins, the head with his fist while sitting truck. The pickup in his and, in Goggins’ decided this favor issue opinion, we purposes of this are bound is, however, finding. The evidence respect extent conflict quotations "alleged.” 1. These are word taken from the form, but emphasis we have furnished the that, prick pin being a small break skin doctors testified Appellant’s injury. striking, puncture consequence wound.” aas abrasions, contusions and minor addition reported had Dr. also Willson headache, epilepsy, Goggins suffered on the headache due to blow a vascular damage resulting in post-traumatic brain head. seri- intelligence-quotient reduction Schwidde, neurologist, whom Dr. Dr. *3 doctors de- injury. appellee’s The ous ear Goggins, referred wrote to Willson Willson permanent inju- that these serious and nied Septem- examining appellant on after the blow. resulted from or conditions ries 15,1981, Goggins had a “sustained ber testimony accept we are bound Since p.m. Sep- to the left ear” at 6:00 blow party and to the successful most favorable 1981, 14, developed right a and “he tember disregard of the unsuccessful the evidence he had headache.” He said that frontal therewith,2 it will be our party conflict trauma, blow a “cranial cerebral received assumption throughout these considera- developed had cause the left ear” and that he did not tions that assault alleged epilepsy, post-traumatic pecto- and neck and left appellant’s “severe headache injury. permanent ear damage and brain and that pain” as a result of blow ral Goggins “dazed” after the blow but is, however, competent and uncon- There pre- The doctor not rendered unconscious. testimony in- that some medical tradicted Compound” to “Talwin treat scribed some the blow. The doctor resulted from the headache. appellant day after inci- saw who question Willson—testified dent .Dr.—a that both Dr. It is to be further observed Goggins had and Dr. submitted bills Willson Schwidde contusion, ecchymosis, “[sjwelling, some appellant, which services rendered to areas, small black and blue which is by the assault were necessitated services abrasion, thing puncture type amount of here, appellant battery in and issue around the ear.” prescription expense that incurred medical “puncture type thing” as:. He described ordering by the doctor’s was occasioned “Break, small break in the skin. It’s a relief for the headaches. medicine scrape puncture obvious from the blow of some sort.” Appellant’s The Position request description of the A for a further “the represents pri- brought response: ear area appeal” “Special mary for this basis “Well, point they scrapes pin clarity For of the issues Form.” Verdict punctures, you whatever want call follows, we which here- discussion them, small breaks in the skin and some part publish relevant doc- ear,
minor around the abra- abrasions ument: just being a break on the skin as sions VERDICT FORM
“SPECIAL cause, try the above-entitled “We, jury, duly empaneled sworn to do find as follows: Harwood, Defendant, an assault commit Ed 1. Did the “QUESTION Plaintiff, Goggins? battery upon E. Jack 1316, (1984), v. quoting Richardson from We 1319 often said: have 778, (1982). Green, Wyo., P.2d 779 644 "‘We assume of the that evidence favor Stadler, Wyo., 1 685 No. Pine Creek Canal true, disregarding entirely party successful (1984); Wyo., 13, Fagan, Scott v. P.2d 17-18 party in con- the evidence of the unsuccessful Prater, (1984); Wyo., Brockett P.2d therewith, give flict to the evidence King Speed Herman v. P.2d party every inference successful favorable Wyo., Manufacturing Company, may reasonably fairly drawn Bauer, from it.'” Anderson v. Yes _X_ “ANSWER No _ “(If your you 1 is answer ‘Yes’ then answer will Question Question ‘No’, your proceed you 1A. If 1 is answer then should Question Bailiff.)
sign form and return it to the upon l.A. the assault and Ed Was Hardwood “QUESTION injuries cause of Jack E. sustained Jack E. Goggins?
“ANSWER Yes_ No _X_ considering your 3. Without answers “QUESTION Questions above, you fairly compensate what total amount of award to Plaintiff, *4 Goggins, alleged injuries: for Jack E. his “One Hundred Thousand
' 100,000.00 $ “ANSWER guilty Ed 4. Was Harwood of willful and wanton miscon- “QUESTION
duct under the circumstances of this case?
“ANSWER Yes_ X No
“/s/ Pryde_ Jessie M. FOREMAN/FOREWOMAN” appellant argues the trial Goggins alleges “Mr. during this conversation, Mr. court’s instructions with the Harwood an committed battery upon assault allegations causation, and him. parties, of the He bur- fur- alleges thermore a result proof, disability, damages, den of and when of alleged and battery, assault he has together special-verdict considered suf- injuries personal and he requests form, confused, caused to become fered damages that he awarded these resulting fatally in the return of a incon- injuries. faulty and questioned sistent verdict. The assaulting “Mr. denies ever or Harwood pertaining allegations of the battering Goggins. Mr. He denies that parties, proximate cause, proof, of burden Gog- bodily he inflicted harm on Mr. disability, damages following:3 are the Gog- gins and therefore denies that Mr. gins any damages should be awarded Allegations the Parties of this case. provided: Instruction No. 3 Plaintiff, Goggins, “The E. Jack has law suit “This arises as the of an result proving by prepon- burden his claim a of September 1981,involving incident on derance of the evidence. Goggins E.
Jack and Ed Defendant, Harwood. On Harwood, “The Ed has particular day, road from duty proving of his de- of elements Otto, preponderance Wyoming, Basin to fense of the evi- Mr. added.) (Emphasis dence.” Mr. Harwood had a discussion con- cerning a water well which Mr. easement Burden of Proof Goggins wanted to proper- obtain on the ty of Mr. provided: Harwood. Instruction No. emphasized the causal principal presented
3. Since issue is concern were not appellant, we underline references jury. causal following jury although they injury would not proving without which the burden has “The Plaintiff added.) (Emphasis have occurred.” of the evidence preponderance following: Anguish Mental “(1) committed the Defendant That upon him as is battery provided:
assault No. 12 Instruction No. 5. in Instruction defined instructed that men- ‘‘You are further “(2) prox- That the assault anguish suffering arising tal injuries, proper is a imately said Defendant from damage to damages, with reason- element expected hereaf- certainty can be able Plaintiff endure, arising from the decrease of inju ter “(3) and extent of The nature body suffered, ability any part of the have been so ries claimed to (Emphasis damage function.” the Plaintiffs the elements of thereof.[4] and the amount Disability of estab- Defendant has the burden “The of the evi- lishing by preponderance provided: Instruction No. necessary prove of the facts dence all person “A who has a condition disabili- following: injury is not entitled ty at the time of an “(1) he not assault and batter That did However, damages to recover therefore. those terms are defined the Plaintiff as recover he is entitled to Instruction No. 5. preexisting any aggravation such *5 “(2) injuries proximately and re- disability That condition Plaintiffs by any sulting injury. not caused ac- damages were from and that the tions person’s is even if the condi- “This true Defendant of damages of the Plaintiff injuries and suscep- disability him more tion or made wise arose pre-existing or other ill effects than a possibility to the of tible from causes other than the actions of have normally healthy person would the Defendant. been, normally healthy if a and even determining person probably “In whether an issue has would not have suffered proved by preponderance any injury. of the been substantial evidence, you consider all of the should disability preexisting condition or “When regard- bearing upon that issue evidence damages aggravated, the as to such is so produced it. The existence less of who disability are limited to the condition or proposition proba- must more of such by aggrava- injury additional caused (Emphasis ble than its non-existence.” added.) (Emphasis tion.” added.)
Damages
Proximate Cause
provided:
No. 9
Instruction
provided:
Instruction No.
for the Plaintiff on
you
“If
decide
fix
liability, you must then
injury
question of
“A
is a
of
reason-
direct,
money which will
the amount of
cause which in
unbroken se-
compensate him for
ably
fairly
those
quence produces
injury.
It is one
4.Wyoming
3.01,
gence
"(1)
that the
proximate
proving
“In this action the
following:
case,
That the defendant was
[******]
plaintiffs
by
negligence
provides
Civil Pattern
cause of
preponderance
* * *
burden of
plaintiff
that:
of the defendant was a
Jury
has the burden of
proof
Instruction No.
of the evidence
damage
negligent;
in a
negli-
(2)
6. Verbatim
Verbatim from
plaintiff;
amount
tions.]”
elements
injuries
claimed
thereof.
from W.C.P.J.I.
of
(3)
plaintiff’s
W.C.P.J.I., No. 3.04.
to have been so
The
* *
nature and extent of the
*
[Wyoming
No. 4.03.
damage
suffered,
case cita-
damage
by
proved
Appellant’s
elements
the evi-
“It
of
is
contention that the low-
dence to
been caused
the action
have
permitting
er court
erred
the ‘special
Defendant, taking
into considera-
verdict form’ to be submitted to
jury.
nature,
tion the
extent and duration of
The
was confusing and mislead-
form
injury.
ing when considered
light
“(1)
The claimed elements
other
concerning
‘'proxi-
are:
mate
It is the
responsi-
cause’.
Court’s
“(a)
experienced
pain
suffering
bility to see to it that
the law the case
of the injuries
as a result
and those
clearly
forth in the
set
instructions.
It
experienced
reasonably certain to be
axiomatic
fundamental that a jury
the future.
cannot be confused or misled on a sub-
“(b) Disability.
ject
‘proximate
so vital as
cause’. The
“(c)
enjoyment
Loss of
of life. The
Court should not be allowed to relieve
specific
award for this
element should
itself from its vital and essential role as
duplicate
given
any
the award
‘legal supervisor’
by citing the rule
damage.
other element of
any objections
not raised
“(d)
earnings.
Loss of
The value of
attorneys
Ultimately,
are waived.
earnings
lost
this date and the
court must have some responsibility to
present
earnings
any
cash value of
rea-
protect
lawyers
clients and
from them-
sonably certain to be lost in the future.
selves. There are even times when it
“(e)
expenses.
Medical
The reason-
must
responsibility
be the
of the trial
necessary
expense
able
medical
protect
court to
clients from their law-
care, treatment and services received
yers.”
(Emphasis
date,
any
expense
medical
rea-
brief,
Again, in
appellant argues:
his
sonably certain to be incurred in the
given
‘Special
“The
Verdict Form’
future.
Jury by
lower
confusing
court was
“Whether
of these elements have
misleading
on the
matter
‘cause’.
proven
you
been
to determine.”7
truth,
actually
the form
contradicted
appel
We do
understand the
out[9]
incorrectly spelled
law
*6
principal
lant’s
claim to be that the instruc
court in Instruction No.
and other in
tions are—in
and
themselves—inherent
relating
question
structions
to the
that,
ly
only
when considered
erroneous8—
cause.”
form,
with the
verdict
was forced
It stands without contest that neither the
and,
reason,
become
to
confused
for this
special
any
form of the
verdict nor
returned a verdict which
substantively
was
given
objected
by
were
ap-
prejudicial
so defective as to constitute
er
pellant,
appellant
not
and the
did
submit
example,
appellant
particu
ror. For
larly
form
substitute instructions
verdict
in
concerned
effect that
upon
Further,
proximate-cause
verdict form
their
had
stead.
when
re-
instructions,
court,
says in
appellant
and
his brief:
turned
to the
its verdict
3, 6, 11,
Verbatim
7.
from W.C.P.J.I. No. 4.01.
contained in the instructions numbered
9, supra.
13 and
appellant's
say
If
8.
brief can be read to
that the
propositions
instructions misstate
of law for
9. Again,
proxi
not consider the law of
we will
stand,
they purport
point
he
does
"incorrectly spelled
mate cause to have been
any given
to the law
instruction is
instructions,
only because we
out” in the
misstated,
any authority
nor does he cite
case, but,
appellant
be the
if the
not find this to
position.
such
We would therefore consider
does not believe that the instructions constitute
waived,
such a contention as either
or that we have no
been
proper
a
cause,
of the law
statement
obligation
it
consider
obligation
why
point out
it is his
this is
Milatzo, Wyo.,
Kincheloe v.
Appellee’s Position 5. returned verdict inconsistent Was the appellee’s position is the response, it its and inconsistent when com- face special-verdict error in the that there is no pared evidence and to the uncontroverted instruc- form as submitted other irregular thus an verdict? but if there error in proper, tions were If as submitted and re- the verdict special-verdict submission of the form instructions, error turned constituted questioned was waived waived, the law of the case. The nevertheless call they became did the error appellee plain-error contends that the verdict as also doc- for reversal under inconsistent returned is not either on trine? compared face to the evidence or as *7 case, and, any finally,
the error which Decision might present this find to be does court not, event, plain-error propor- in reach Object to Instructions —Failure tions. object proffered fail to Was it error to to their submission to prior to The Issues jury?11 the
The
identifies the issues
W.R.C.P.,
part:
Rule
states
decision as follows:
Decker, Wyo.,
throughout
opin-
DeWitty
1289
“ * * *
may assign
proper
error
party
No
as
on its face and erroneous when com-
give
to
giving
pared
the failure
an instruc-
to the
testimony,
uncontroverted
all
objects
he
thereto before the
tion unless
prejudicial
which resulted in
error.
stating
to
its verdict
jury retires
consider
deciding
juncture
Without
at this
wheth-
objects
to which he
distinctly
matter
er,
instructions,
when read with the
grounds
objection.”
his
fatally
verdict form was
defective as sub-
applied
Eddy,
The
v.
rule
Cates
returned,
mitted or as
we ask and answer
(1983);
Wyo.,
Tadday
P.2d 912
v. Na
question:
this
Underwriters, Wyo., 660
tional Aviation
object
Was it error to fail
spe-
(1983);
State, Wyo.,
P.2d 1148
Harries v.
cial verdict form
submission to
before
State,
(1982);
1290
authority
contrary
found to the
is
objection to the ver-
“Some
no
made
counsel
tiffs
* * *,
pur-
in mind the
but
and made
poll
jury,
dict,
did not ask
jury
a
pose of our statute to afford
clarification
to seek
attempt
no
mistakes,
its own
our
right
to correct
long af-
Subsequently, and
jury’s verdict.
in the Innes
previous pronouncement
dismissed,
appel-
had been
jury
ter
Wyo.
203 P.
Hay,
v.
28
case [Innes
reimpanel
court
the trial
lant moved
(1922)],
convincing authori-
alleged inconsistencies
that the
jury
so
jurisdictions,
other
we
ty from
appeal could
in this
complains
which he
require
it
or unreasonable to
think
harsh
denied the
trial court
be addressed.
opportunity
afford-
litigant, when an
is
DeWitty
authority of
under and
motion
trial,
bring
timely to
during
ed
W.S.1977,
1-11-213,
statute
and §
as here to the attention
matter such
provides:
might
in order that it
be
the trial court
jury
or if when
disagrees,
jury
“If a
corrected,
failing in this that he shall
negative,
juror
answers
polled
is
complain.
hold
here to
To
not be heard
substance,
is defective
or if the verdict
jury,
seem unfair to the
otherwise would
again
fur-
out
for
jury
shall be sent
court, and to the other liti-
to the trial
party may
either
ther deliberation and
unnecessary
gants,
say nothing of the
by the clerk
jury
polled
require the
expense.”
P.2d at
of time and
loss
if
asking
juror
it is his
each
or court
738-740.
verdict.”
Company
Caterpillar Tractor
v.
Accord:
Decker, supra,
DeWitty
(1983);
v.
Donahue, Wyo.,
1291
734,
(1963).”
have,
past, recognized
383 P.2d
738-740
674 We
in the
Wyo.,
our
at 236.
P.2d
authority
plain-error
under the
doctrine to
improper
set aside an
verdict which result
appel-
There can be no doubt but that the
ed from the issuance of defective instruc
failure to seek to correct
sub-
lant’s
objections
tions to
lodged.
which no
special
in the
stantive defect
verdict when
State,
1384,
Wyo.,
returned to the trial court was a
Gore v.
627 P.2d
1387-
right
he
waiver of his
to do so and that
(1981);
State,
1389
Wyo.,
Cullin v.
may
complain
to
not now be heard
unless
445,
(1977).
P.2d
In
State,
Gore v.
error will
to
doctrine
come
adhering
discussed
reason for
to this
appellant’s
subject
rescue—a
we discuss
rule:
Decker,
supra.
infra.
also
See
important
“One
invoking
reason for
1091,
Hay, Wyo.
Innes v.
203 P.2d
plain-error
reviewing
doctrine
when
Wailes,
and see Neal v.
objected
instructions which were not
(1959).
during
trial,
Instructions,
Plain Error and
Includ-
particular
are written with the
facts and
ing
Special
the Verdict
Verdict And
theories of each case in mind. The
as Returned
judge, with the advice and assistance of
7.05,
plain-
Rule
W.R.A.P. states the
attorneys
case,
attempts
in the
error doctrine:
they help
tailor the
so that
affecting
“Plain errors or defects
sub-
the jury develop
understanding
a clear
rights may
although
stantial
be noticed
how the facts are to be determined under
they
brought
were not
attention
applicable
prob-
law of the
case.
the court.”
jury may
applica-
lems the
have with the
rule,
plain-error
In order
invoke
it is
ble law will differ from case to case and
necessary to show
appropriate
therefore the instructions
“
*
* * (1) that the record reflects clear
many
may
each case
also differ.
of;
unequivocally
complained
the fact
cases, any one of several instructions
(2)
prove
transgression
that the facts
may
legally
duty
be
correct.
It is the
law; (3)
of a clear rule of
error
attorneys
in each case to determine
right
affects a substantial
of the ac-
acceptable
legally
instruction best
cused;
(4)
that the defendant has
presents the client’s ease. Neither the
materially prejudiced by
been
that viola-
court,
judge,
appellate
has
nor
State, Wyo.,
tion.”
Westmark
appropriate perspective
to make such
they
Even if
decision.
did understand
Notwithstanding
appel-
the fact that the
attorney
the ease better
than the
(includ-
object
lant failed to
to instructions
it,
presenting
prohibits
their role
them
form),
alternative,
ing
or,
the verdict
in the
urging
from
one instruction over another
therefor,
to offer substitutes
and even
Thus,
providing
legally
both are
sound.
though he
call
failed to
to the court’s atten-
unless an instruction can
said to
perceived
tion
substantive defects
plainly
have
caused a fundamental
prior
returned verdict
jury’s
dis-
prejudice
legal
to the defendant’s
charge,
Goggins’
it is Mr.
contention that
rights, we
on ap-
will
overturn it
the trial court committed fundamental and
peal
objected
to during
unless
prejudicial
submitting confusing
error
proper
the trial and a
instruction was
faulty special-verdict
instructions and a
form,
place.” (Emphasis
its
receiving
irregular
and in
an
offered
inconsistent verdict.13
misconduct given plain party and returned constitute complaining dict the where situation warranting the in- exception to either reversal. to error failed take tendered the of verdict form structions or ordinarily returned, would be review or In This is an Inconsistent Verdict There However, 51, Rule W.R.C.P. foreclosed Impossible to And One Which is Case following exception: noted this we Uncontested Reconcile With Witness * * * “ here, However, a where Testimony part on the charge misconduct of outset, very for it is difficult At the damages and on issue of jury is made Goggins be court to see how could bear apparent that the instructions it is head which is by a blow to the assaulted charge, it is relationship to the direct inju of of proximate cause of cognizance be taken that appropriate Perhaps complains. he some ries of which P.2d at 737. matter.” 383 the entire ethereal, hypothetical fantasy could sort of * * * “ convinced that such are not [W]e it whereby could be envi structured be in the ver- irregularity impropriety person * that a could receive blow sioned *.” it aside just to set dict confer cause injury, but it is hard us and no 736. 383 P.2d at Therefore, DeWitty, as in imagine. Anselmi, 348, Wyo. 258 v. Borzea jury may, purposes, for our verdict of the (1952), said: improper regarded as inconsistent * * * “ party rule that a general It is the Furthermore, impossible is its on face. complain of an instruction to cannot that jury’s findings for us reconcile * * * exception is taken. That which no commit there was an assault case, apply in this unless rule should against Goggins and that ted Harwood complained is perchance error was not “a the assault (Emphasis vital.” testimony injuries,” with Graves, Wyo., v. In Cervelli treating testified without con doctors who (1983), objections proper injury— in fact received that flict lodged, we held
to the instructions
abrasions,
i.e.,
ear lacerations and
minor
confusing
misleading
giving of
necessity
pre
resulting
headache
applicable principles
law
instructions on
In other
purchase medication.
scribe and
warranting
prejudicial error
re-
constitutes
words,
permit
logic does not
a conclusion
versal,
we said:
fact
find
could
reviewing alleged
in-
“In
errors
no
when the record
assault but
structions,
finding
alone
of error
proposition
uncontradicted
stands
reverse; prejudicial error
sufficient
from the as
injury did
fact result
Texasgulf,
must be found.
Walton
battery.
This caused
sault and
Inc.,
Preju-
Wyo.,
Mostly, they Wyoming are taken from the appellant objection The frames his Instructions, Jury they Pattern are interrogatory to this as follows: found to be accurate and well fortified with worse, “To make matters even the Court ques and forceful authority. relevant Question in jury advised the 3: ‘Without they conspire tion is whether to constitute considering your ques- answers the special jury error when read with the above, tions what total of amount dam- and, problem precisely, the form has to do ages you fairly compensate award to clear, they unequiv with whether violate a plaintiff, the Goggins, Jack E. for his upon proxi ocal rule of law the issue of injuries.’ gave jury This directive the mate cause. impression the questions clear that the respect, jury (1)
In this the found Har- concerning whether or not there was an wood committed an battery, assault and battery, assault and and or whether not (2) battery and the assault and was ndt cause’, ‘proximate there was was not to proximate injuries cause of the sustained by jury determining considered the in by Goggins. question the damages. hand, form, “On the other Up point, the the lower court told to this verdict taken * * * together jury the in with the other Instruction No. 6 that instructions and particularly the having proving ones had the that do with burden of cause, proximate could not battery, be said to be there assault and that misleading confusing. Granting or battery the re- by the assault and the defendant irreg- turned verdict to be inconsistent and ‘proximate was the cause’ the decision, purposes ular for of this neverthe- damage plaintiff, the instructions, less form plaintiff damages. suffered The matter offered, least, juncture to this at are not of ‘cause’ was referred to in various misleading confusing and therefore can- ways throughout the court’s instruction brought irregu- not be said to have on the being necessary But element. lar verdict. hand, the other the lower court advised it verdict form that need Appellant argfFes should question not consider the of ‘cause’ in they have been told if in answered deciding damages. to award What other negative (Was to either interrogatory No. give interpretation ‘Special can one battery?) there an assault and or interrog- * * * Verdict Form’? (Was atory No. 1A the assault and ‘Special injury?), given “The Verdict Form’ this was the Jury confusing end of the matter and not lower court was could misleading be awarded. counsel But on the matter of ‘cause’. point truth, why actually does not out this failure to so the form contradicted Interrogatory appellant, No. to do issue and so it will not be a with wilful misconduct, part opinion. brought and wanton our into consideration in this within the incorrectly spelled out overlooked and not considered law 6[15] so, No. other interrogatory. Even Instruction context of court question relating to purposes conceding decision this (Emphasis cause.” follow, at impropriety, does not for us least, together instructions taken interrogatory No. 3 find that We cannot special-verdict form caused materially inconsistent with or is conflicts way irregularity. proximate-cause plain error. which constitutes telling There is no inherent error us, interrogatory No. does mis- For proof plaintiffs burden of what proxi- concerning the law of lead the inju- plaintiff’s that must decide whether *12 proving it. the burden cause and mate alleged ries the assault and were caused that, jury the in No. 6 tells Instruction instructing the to battery and then recover, he must plaintiff to order damages regard to find- assess without battery the assault and prove the fact of ings concerning fact the of the assault proximate cause of the and that it was proximately inju- whether or not it caused interrogatory in damage. The injury and compara- in ry. This is done all the time focus question simply asks the to on (see 1-1-109, tive-negligence cases W.S. § into damages taking consideration without 1977) liability parties is where the of both fact there was in they whether believed bar, the appellee in In the case at issue. whether, was, if there it was a assault fault, plaintiff charge does not the with injuries complained proximate of the unnecessary com- and therefore it was to of. however, negligence;16 the re- pare fact that, to here be- It is relevant observe consistently to juries are asked mains and modest medi- the minor abrasions sides compare fault been instructed first evolving from the assault bat- cal bills then, re- cause—and without proof tery, respect to which the was with gard parties, re- to the fault the are conflict, plaintiff alleged exten- in plaintiffs damages. quested to assess proof of permanent injury the which sive procedure accepted This established second-guess in We need not was conflict. process tells us that this does not violate might to well have deduct that way the substantive law a that would place took but believed that say nothing of er- error —to indicate (as appears “alleged” that word that the analogy comparative-negligence ror. The 3) injuries No. did not result interrogatory apropos relevant and becomes least within context of therefrom —at Jury Wyoming Pattern consider Civil proof nearly all of of the case These include Instructions. damage, upon brain focus 10.02, “Comparative negligence No. permanent injury, ear epilepsy and —Ver- therefore, Single parties,” provides: that, dict the minor abrasions form— “We, questions present following jury, answers submitted by the court: percent- Considering percent, all what “1. of the fault at one hundred following persons? age of the total fault is attributable each (0% 100%)_% . “_(Plaintiff).. (0% 100%)_% .
“_(Defendant)
“Total 100% 16. Harwood Wyoming corpora- Enterprises, a This assault and it also instruction defines tion, battery. appellant’s during proceedings reference to the defines had been dismissed out,” "incorrectly spelled that it without plaintiff prove fact failed for the reason that had citations, objection is insufficient to warrant liability of defendant. this Manning, response from this court. Osborn v. considering percentage question one, “2. Without fault found damages you by? what total amount of find was sustained “_(Plaintiff) .$_ if
“_(Defendant,
applicable)_$_
Jury Foreman” (Emphasis
Therefore, be seen jurors payment, can are damages were, for whatever rea- often damages asked to assess as- son, without required to be assessed. sociating them or considering them concluding point, we ob parties,
the fault of
and often
re-
serve that the
has
referred us
sult
of this exercise results
single
to a
authority which holds that
finding
yet
no
fault
are
*13
giving
special
aof
verdict
such as
nonetheless
All
that
inserted.
that
this
in contest
amounts
is
here
error.
jury finding
any
to is the
is
We have
—as
given
not
he is
been referred to a
guilty
single
actor —that
not
fault
case which
of
(for
i.e.,
proximate-cause
of
may
any
whatever
holds
the
there
have
instruc
reason —
cause),
proximate
yet
been no
jury
given
the
tions —or
other
instructions —to
and,
go
must still
damages
law,
on to assess
in misstate
the
and we have not been
many instances,
they are indeed found to
any authority
cited to
which holds the com
be substantial.
This has not been found to
proximate-cause
bination of
instructions
to
be a confusing
juries.
task for
gether
special
with
verdict such as the
given
one that was
here to have caused
fact,
point of
in
comparative-
In
juries
be misled
and confused.
Even
case,
negligence
jury having
the
in
been
though
point
have
discussed the
in
consequences
formed of the
of its action as
detail,
some
the rule of
is that
law
this
judge
required
the
is
to do when requested
not
alleged
court will
consider
error that
is
(see
1—109(b)(iii),W.S.1977),
§' 1—
supported only by perfunctory
argument
found that
plaintiff
guilty
great
the
was
of
Milatzo,
Kincheloe v.
authority.
and no
er fault
than a defendant
other
tortfeasor
Barnette v.
Wyo.,
(1984);
liable,
wise
always
would
find
in a
itself
Doyle,
Wyo.,
(1981).
pelled to assess at least some
therefore, rights appel- of this substantial In DeWitty, sub- affected.
lant would be rights were affect-
stantial because, having really substantial
ed found flowing negli-
special damages from the defendant-appellee, gence of the Marilyn Leonard TOMASH general damages, yet we assessed no Tomash, Appellants opportunity to held because of the (Defendants), 1-11-213, correct the verdict offered § W.S.1977, complaining party will be Evans, M. T. and Thomas Max EVANS error, held to notwith- have waived the (Plaintiffs). Appellees ir- degree impropriety standing regularity.18 No. 85-13. bar, at no matter how obvi- the case Wyoming. Supreme Court irregularity, right complain
ous the 15, 1985. was, Aug. of this verdict under v. Deck- er, supra, appellant waived and cannot successfully complain.
now be heard
Affirmed. Justice,
THOMAS, specially con- Chief
curring.
I result quarrel in- majority opinion
reached in the me, however, seem
stance. It does nothing hold more than: trial court opinion purport or considered 18. This does not cover and, thus, Jury alleged is not here. in issue misconduct. misconduct was not