*1 Plaintiff-Appellee, HIGGINS, Salvador HERMES, Defendant-Appellant.
Frances M. 2292.
No. Appeals
Court of of New Mexico.
July 1976. Aug. 4,
Certiorari 1976. Denied
380 testimony this
made
the course of
preserved.
and therefore
error was
James,
376,
State v.
denced a belief that The issue raised is that the psychological second dam- age separated could not in in physi- not be doctor assumed facts from the injury, cal preparing testimony. ap his so that The doctor discussion of dis- ability pears reports must to have relied on medical take account of both factors. prepared by objection other doctors. The is disputed not that under New It reports impermissible that these were an Mexico law damages can be recovered for they basis for his because were mental pain suffering as a conse evidence, itself, not, in is a sufficient quence physical injuries. Rutledge v. objection. objection that There was no Johnson, N.M. reports these were of the sort reasona complaint recovery “pain” asked bly experts. relied on 20- such Section “agony”, descriptiоn and the the wit 4-703, 4, Supp. (Repl.Vol. N.M.S.A.1953 gave ness plaintiff’s of the condition was 1975); Springer Corporation, Herrera v. encompassed by these terms. Under 1202 (Ct.App.1976). concept “pain suffering” recovery has argues been that the trial physical pain, allowed The defendant nervous ness, plaintiff grief, permitting the anxiety, worry erred in and shock. Ca- court “per permitting
make a
diem”
sum
the effect of
the attor-
closing argument,
ney
testify,
at-
is
During
plaintiff’s
since there
no fоundation
torney
going
specific
told the
in the evidence for a
he was not
sum. We
agree
ask them
with
response
to award the amount asked
of the California
$250,000.00.
Supreme
complaint,
his
this reasoning:
which was
In-
Court to
stead,
continued,
permitted
is
thought
specific monetary
he
he
that at this
to infer a
trial,
$62,000.-
evidence,
stage
appeared
it
sum from the
it is
because
as-
suffering
sumed that the
00 would be a fair amount. He elaborat-
evidence of the
pain undergone by
ed:
forms
a sufficient foundation
for the award of
“Now,
figure.
biga
It sounds
specific monetary
attorney,
sum.
who
big.
questioned
you
And I
detail con-
traditionally discusses the inferences from
cerning
money
figure
amount
evidence,
should not be restricted from
large.
already
we have
Here
*4
See, Comment,
comment on this inference.
accident,
passed from
date of the
the
612,
(1962).
60 Mich.L.Rev.
621-624
January
to the date of his
birthday, April 22,
days.
1975—434
He
theory
objec-
second
under
The
years
is to live another 38.51
and we’re
arguments
tions
are made is
per
diem
13,935
looking
days missed
ahead at
—I
juries
grasp
tend to
at
definite
14,396
it,
days.”
a total of
them,
put
might
sum which
before
and
by
jury
The amount returned
for the
the
thereby
that excessive
can
result.
verdicts
plaintiff
$62,000.00.
was
argument
given special
in
This
force
this case where the
return a ver-
does
argues
The defendant
that this form of
requested by
dict for the exact amount
argument
impermissible
was an
“per diem”
knowledge
counsel. To
it is a common
our
argument.
typical
In
per
argu-
the
diem
practice
juries
in New Mexico to inform
ment,
specifies
daily,
or even
sought by
plaintiff,
of the amount
hourly,
plaintiff.
amount
compensate
putting
which also has the
effect
defi-
days
The number of
the condition will con-
Indeed,
nite sum before the
jury.
supplied
tinue is also
as is the final sum.
in
in prohibiting
per
court Botta
diem
argument
The
above differs from the tra-
argument
theory
logical
tоok the
to its
ex-
ditional only in that the division was not
tension by refusing
to allow the
done for
hear
requested by
the total
plain-
sum
The New Mexico courts have never ad
Secondly,
tiff.
sup-
we know of no real
per
dressed the issue of whether
diem ar
port
theory
per
for the
argu-
diem
guments
prohibited.
should be allowed or
ment
verdicts,
results in
pre-
excessive
and
Of the state courts which have considered
fer to control the evil of excessive verdicts
majority
issue the
have concluded that
processes
judicial
normal
review.
per
arguments
diem
should be allowed.
Beagle
Vasold,
the fifth point
65 Cal.2d
the defendant
53 Cal.
Rptr. 129,
argues that
P.2d
verdict received
(1966).
the de
fendant
is excessive and
put
should be
The
presenting
argu-
landmark case
aside. The
suffered a
im
35%
against per
ments
diem appeals is Botta v.
pairment
body
to the
as a whole. He was
Brunner,
138 A.2d
60 A.L.
N.J.
occupationally disabled. Exten
35%-40%
R.2d
exposi-
The definitivе
pain
sive evidence of
suffering
in
tion of
opposite
view is
found Bea-
evidence,
troduced. The
viewed
gle Vasold,
supra.
primary objec-
The
light most
plaintiff,
favorable to the
sub
tion of the
Jersey Supreme
New
Court to
stantially supports
appears
form of
award. Sweitzer v.
to be that
allowing
attorney
suggest
specific Sanchez,
(Ct.
N.M.
App.1960);
Walker,
Hughes v.
changed. Today,
Times and rules have
63, 428 P.2d
requires
a claim for
“(2)
relief
a short and
plain
showing
statеment of the claim
judgment
of the trial court is af-
pleader
relief,
is entitled to
firmed.
judgment
demand for
the relief
IT IS SO ORDERED.
which he deems himself
Rule
entitled.”
8(a) of the Rules of Civil Procedure.
SUTIN, J., specially concurring.
“When
damage
items
claimed, they
specifically
shall be
stated.”
HERNANDEZ, J., dissenting.
Rule 9(g). These rules are derived from
SUTIN, Judge (specially concurring).
the Federal Rules of Civil Procedure. All
required,
simplicity
to indicate the
I
concur
the result.
brevity
general
of the claim for
Allegаtions
A.
body
special damages, is
set forth in Form 28
general,
special,
mind are
U.S.C.A.,
84, p.
Rule
85.
damages.
3. As a result
was thrown
challenge
does not meet the
down and had his leg broken and was
of defendant. Defendant claims that Dr.
injured,
prevented
otherwise
from
testimony
psychology
Salazar’s
on clinical
business,
transacting his
great
complaint
was inadmissible because the
pain
mind,
body
and incurred ex-
allege
injuries
“special
psychological
*5
penses
hospi-
medical attention and
for
pursuant
damage”
9(g)
Rule
to
talisation in the sum
one thousand
Rules of Civil Procedure. This issue is a
[Emphasis
dollars.
added],
impression in
matter of first
New Mexico.
“It is to be
that
noted
the matter in italics
question
The
for decision is: Under
is a
special damage,
statement of the
Procedure,
9(g)
Rule
of the Rules of Civil
general
there is no statement of
dam-
psychological
are
injuries “special dam-
age,
than
injury,
other
a statement of the
аges”
alleged
which must be
in the com-
for from
presumes general
this the law
plaint? The answer is
Damage
“No”.
to
damages to follow.” 2A Moore’s Federal
body
general
and mind
damages.
are
9.08,p.
(1975).
Practice
1976
§
pro-
cites two cases which
9(g)
Rule
refers to “Items of
that,
law,
vide
under
un-
the common
it is
damage”.
[Emphasis
This means
added].
necessary
specifically
injuries.
to
allege
plaintiff
recovery
that when a
seeks
of a
Reference
is made to 22 Am.Jur.2d
sрecific
damage,
amount of
this item must
Damages
283
and Thacker v.
§
specifically
complaint
stated.
If a
falls
Ward,
263 N.C.
23 (1965).
S.E.2d
below the minimum standard of Form
complaint
Under common
pleading,
law
supra, a motion for a more definite state-
should disclose all the facts which the de-
Miller,
ment can
Getsy
be filed.
9 F.R.
fendant must know in order to make his
(D.Ohio
D. 564
If
1949).
a defendant
prevent
defense
surprise
and thus
at trial.
pretrial procedures
fails to use
to obtain an
facts
Thesе
must disclose the character of
special damages,
enumeration of
it comes
injury
for which defendant must an-
too late
seek
to
relief
Great
trial.
Thacker,
swer.
alleged
Brown,
American Indemnity Company v.
injuries
moribund
shock
included
to
(5th
1962).
(A conference average. than the shorter your I will read THE COURT: per ar- This instruction leads to diem record. It is made objection into the argued: gument. Plaintiff of now. Mortality now, aсcording to the From objection was not read into longer, may live he objection Tables—and he was the
the record. Neither
14,396 days
impres-
might
got
live
has
first
less'—he
This is a matter of
ruled on.
injury,
date of the
we
live. From the
Mexico.
to
sion New
14,396 days 14,396 days
talking of
—
“Objections
arguments
to
344,000 hours,
those in
or over
half of
for the trial court
should be made in time
sleepless
13,000
days
more
pain;
them, where
rule on them and to correct
unreasonable,
$62,000.00 an
nights.
Is
possible
it is
to cоrrect them a caution-
not, spread
figure? It is
over
unfair
ary
jury retires.”
instruction before the
period
years. [Emphasis
of 38
added].
171, 178, 453
McCauley
Ray,
80 N.M.
It should be
did
noted
(1968).
must state
P.2d
Counsel
per
per hour valuation
suggest a
diem or
improper
the reasons
oral
money,
recovery
nor limit the amount of
request
prejudicial,
and should
$62,000
pain
suffering. The sum of
disregard the
judge
instruct the
bodily injuries
pain.
covered both
improper argument. Jackson v. Southwest-
closing argument did not fall
Plaintiff’s
Company,
ern
Public Service
“per
within the
diem” formula which
controversy in
The for-
caused
the courts.
attorney
present
defendant’s
In the
attorney suggests to
arises when the
mula
“
duty rests
object.
believe the
But we
jury:
fifty cents an hour
‘Would
object
presence
attorney
on the
suffering
high?”’
be too
that kind of
or to
reporter,
ruling,
a court
obtain
Brunner,
A.2d
Botta v.
N.J.
the court to file a certificate show-
request
his-
For a
60 A.L.R.2d
objections
ruling
ing the
made and
see, Cooр-
tory
per
argument,
diem
*6
a silence
thereon. To do otherwise creates
er,
Argument
the Per Diem
The Role of
appeal.
golden
in the
that is not
on
record
Suits, Duquesne
Injury
5
Personal
U.L.
(1966-67); 14
189
Rev. 393
U.Fla.L.Rev.
p'er
not make a
diem
C.
Plaintiff
(1961-62).
closing argument
jury.
to the
arguments
closing
D. Per diem
to the
plaintiff made
Defendant contends that
jury
guided by
U.J.I.
jury
per
argument
the
closing
diem
to
mis-
which is reversible error. Defendant
cases,
personal injury
In
defendants are
argument
This ar-
closing
takеs the
made.
protected against plaintiff’s closing argu-
on the
gument arises out of
14.24
by cautionary
given
instructions
to
U.J.I.
ment
mortality tables. It reads:
the
years
life
be considered
average
have reached that
figure
According to
expectancy
is
is not conclusive.
life
[38.51]
expectancy
by you in
a table
of
additional
age.
persons aged
of
This
of
connection
mortality
years. This
who
persons figure
It
is the
with
may
[33]
dicial statements and remarks of cоunsel
titled
reads:
Committee
First,
jury
“Closing Arguments”,
during
“to
trial
protect
Comment.
the course of
court
gave
parties
U.J.I.
as a
trial.” See
from
instruction
guide
17.7,
preju-
en-
to
probable
other
After
instructions on the law
relating
these
case,
including
lawyers may
expectancy
[plaintiff],
governing
life
of
health,
closing arguments
on
occupation,
his
habits
make
or statements
evidence of
activities, bearing
sum-
and other
in mind
the evidence and the law. These
juror
ability
clоsing argu-
listen
assistance
of
considerable
can be of
maries
lawyers
your
guided
decision and ments of
when
caution-
arriving at
you in
may
carefully.
ary
You
instructions.
you
listen
should
you think
as
weight
them such
give
Improper
is not reversible
argtiment
E.
(cid:127) However,
these final
neither
proper.
extremely
award is
error unless the
ar-
remarks or
nor
other
discussions
excessive.
attorneys made
of the
guments
is not revers-
Improper closing argument
consid-
trial are to be
thе course
awarded
ible error unless the amount
as correct
nor
by you as evidence
ered
extremely
weigh
excessive. We do
contrary
law if
statements of the
determine excessiveness
evidence. We
you in these instructions.
given to
law
Baca,
Baca v.
81 N.M.
a matter of law.
jury
read to the
This instruction was
(Ct.App.1970); Mont-
method of U.J.I. lawyers are trial presentation of the the close of 14.2 on the measure of U.J.I. Simonett, The Trial as actors. One : damage, the instruction reads Arts, 1145 (1966). Performing A.B.A.J. Further, sympathy prejudice for also, (1955-67); Tenn.L.Rev. 539 See against party your Manual, p. should affect Trial clos- Civil proper per- verdict and is attorneys not a basis of de- ing argument, trial seek to termining damages. peers. argument is based on their If suade reason, If reversible error fades. fact 17.3, Under when the is in- U.J.I. realm fact lawyers step outside they judges structed that are the sole reason, improper argument can lead facts, it concludes: composed jury, generally failure before a sympathy prejudice Neither nor should community. in the the reasonable minds *7 your influence verdict. Public Serv- In v. Southwestern Jackson personal injury “In litigation gener- it is supra, of this Company, the writer ice ally reсognized jury that the favors the improper closing argu- an made plaintiff from the due to outset of the case This rule the Rule”. ment on “Golden reasons, various of the least which is not attorney suggests the an means that 14.1, sympathy.” Committee Com- they that should jury men and women U.J.I. why ment. many This is the reason cau- position party a place in the of themselves tionary given instructions are to instruct a determination of the amount making in jury impartial, the to be “to ascertain thе The Court damages to be awarded. of truth from the evidence in the case.” said: U.J.
I. 17.9. inaccuracy flight or of every It is not Con- oratory error. closing argument, lawyers
In that will constitute ade- judge trial quately protected is by leeway siderable use of these instruc- left [Emphasis in these tions. There should be confidence in added]. the matters. [******] Another venerable rule that we should the American dol- very thing a difficult to deter- consider is the value of It is yesterday. illustra- today, not lar not The best whether or an mine by tion of by in the heat of trial is reversi- this value is described Justice Doernte, Layman in Pa. the cases take ble error or not. Some of Musmanno v. 355, be He wrote: position that each situation must A.2d all on its own basis under judged appellant has various cases cited of the case. the facts and circumstances high were re- in which asserted verdicts 474-75, 1039- 349 P.2d at N.M. at [66 Superior by duced Court 1040]. verdict, height of a The mere Court. judgment, we should wе sit in When however, of ex- in no evidence is itself damages excessive unless hold an award of height always a is cessiveness because or it court” “shocks conscience of Empire relativity. Even the matter of justice.” it our sense of unless “shocks is a Building in New but State York Otherwise, trial say cannot we against image placed toadstool when a upholding court abused its discretion Thus, $25,000 Everest. ver- of Mt. should of the This same rule verdict against placed dict in this must be сase apply the verdict when the claims inflation, as peaks of well the mountain jury of the is too low. years as the hills of the is damages to be awarded The amount of must before he reaches the climac- climb a jury $25,000 primarily question for the A of to- teric life. verdict judge approved day certainly equivalent ver- verdict twenty years ago, review great weight. Courts of dict much entitled to of that sum thirty that venerable rule which less is it verdict of often overlook like similar judgment. forty years ago. guide (Spangler should our Schofield etc., rel., Motor Ex- Territory, York-Pittsburgh ex Helm’s New 538-39, press, 490.) the Court (1899), P. Pa. 153 A.2d said: may be the Nostalgic and sweet as er- us have cause comes before .This memory of the American dollar the trial below correct- occurring at rors re- the inexorable fact exact ed, pass us to on the and not for gone forever. mains that dollar given of the verdict amount sea-diving require a search It would judge determining the case. intensity an arti- archaelogical to find or presided at who the court below doubled, tripled, price has not cle whose trial, noted who saw and jury, and the last or quadrupled two several the manner and actions Hence, comparison three decades. they on the witness witnesses while were past only can with verdicts stand, better than could do far if in unrestrained meaningful we assume simply read- appellate court сan do from purchase a fantasy that still we can ing the taken. . cone, ice cream a five-cent five-cent shine, a
hamburger, a shoe five-cent haircut, a a 35-cent presided good cigar, at five-cent judge . who [I]f *8 shave, steak at 15 cents 15-cent beef thought the verdict had cents, pound, good theatre seat for proper one, was not and one which dollar, adduced, pair for a a seven-course dinner by warranted dollars, and a 12-ounce he of shoes for two undoubtedly set it aside would have nickel, himself, both glass beer for a buffalo granted a and have new trial now, having and nickel not buffalo plaintiffs even if the in error had disappeared. practical purposes, almost made the trial. motion such new [Emphasis Court]. was abandoned Comparison of verdicts jury’s that a ago. mere fact
long VILLEGAS, “[T]he Marcella Plaintiff- Appellant, possibly larger than the court award dis- is not sufficiеnt given would have Stiles, 57 N.M. turb a verdict.” Hall v. AMERICAN AND SMELTING REFINING COMPANY, INC., 281, 285, Defendant- Appellee. closing In the instant 2477. No. improper and the verdict was was not Appeals Court of of New Mexico. excessive. July 27, 1976. (dissenting). HERNANDEZ, Judge respectfully dissent.
I point of third opinion defendant’s my provides: Rule 9(g) is well taken.
error damage are items
“When specifically stated.”
claimed, they shall be plain- paragraph of the fourth
As I read damages general complaint, alleges it
tiff’s are defined damages
only. General consequence of natural are the
those complained
the act of. single three-hour examina-
Dr. Salazar’s an individual discl'osed
tion of stability very delicate
whose emotional accident, by rea- prior percarious
or rural origin, the small
son of his ethnic reared,
community he was born where he very schooling which inferior physi- concluded the
received. Dr. Salazar has resulted injury plaintiff received
cal psyche. his He
permanent his apprehensive only about very
now in life but even to sur-
ability compete Also, grave misgivings he now
vive. virility.
about his results, not the my opinion,
Such minor traffic ac- consequence
natural of a to the defendant
cident and fairness pleaded
should have been with considerable
particularity. I do not believe the letter plaintiff’s counsel sent to defendant’s advising Higgins him “Salvador
will be examined Salazar on Dr. June
26th.”, place takes the constitutes
compliance 9(g). with Rule