Pat Pickering v. Industria Masina I Traktora (Imt) ( 1996 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 97-CA-00034-SCT
PAT PICKERING
v.
INDUSTRIA MASINA I TRAKTORA (IMT)
DATE OF JUDGMENT: 12/06/96
TRIAL JUDGE: HON. ROBERT G. EVANS
COURT FROM WHICH APPEALED: SIMPSON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: DAVID RINGER
ATTORNEY FOR APPELLEE: BARRY H. POWELL
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED - 05/06/1999
MOTION FOR REHEARING FILED:
MANDATE ISSUED: 5/27/99
BEFORE PRATHER, C.J., SMITH AND MILLS, JJ.
SMITH, JUSTICE, FOR THE COURT:
STATEMENT OF THE CASE
¶1. Dissatisfied with a $12,650 judgment against a tractor manufacturer in this products liability action, Pat
Pickering, argues that the lower court erred in crediting the manufacturer with the amount paid to the
plaintiff by two other defendents who settled before trial and also erred in further reducing the balance by
75% to reflect the jury's finding that the plaintiff was responsible for 75% of his injuries. In addition,
Pickering argues that the lower court erred in instructing the jury, in failing to grant a default judgment
against the manufacturer, and in failing to grant an additur. Finding no reversible error, we affirm.
FACTS
¶2. In October, 1988, appellant Pat Pickering purchased a tractor manufactured by appellee Industrija
Masina I Traktora (IMT) and sold by Garner Ford Tractor Company. Pickering primarily used the tractor
in box blade work and minimally in bushhogging and tilling.
¶3. In January, 1989, the tractor's clutch hung up while Pickering was using the tractor. Pickering turned the
motor off and unstuck the clutch. In February 1989, the clutch on the IMT tractor hung again while he was
operating the tractor. Pickering got down off the tractor, with motor running and the tractor in gear, to pry
the clutch loose. Once he pried the clutch loose, the tractor ran over him and broke his left hip.
¶4. Pickering filed suit in Simpson County Circuit Court against IMT, Garner Ford, and Robison & Woods
Tractor Co., Inc., after being injured in the accident involving the IMT tractor. Prior to trial, Pickering
settled with Garner Ford and Robison & Woods for $40,000. At trial the Circuit Clerk announced the case
to the jury as Pat Pickering v. IMT, Garner Ford and Robinson & Woods Tractor Co., Inc.. The case was
tried to the jury against IMT only and submitted to the jury on a special verdict. The jury found that the
IMT tractor was unreasonably dangerous, that any misuse by Pickering was foreseeable to IMT, that
Pickering's damages were $90,600, prior to any reduction based on fault, and that Pickering was 75% at
fault for his injuries. Following the formula specified in McBride v. Chevron U.S.A., 673 So.2d 372(Miss. 1996), the circuit court subtracted the amount of Pickering's settlement with Garner Ford and
Robison & Woods, $40,000, from the $90,6000 total producing a balance of $50,600. The lower court
then apportioned the $50,600 based on the jury's fault finding that IMT was responsible for 25% of that
figure: $12,650. Accordingly, the circuit court entered judgment in favor of Pickering and against IMT for
$12,650. Pickering then moved for an additur of $77,950 to restore the full $90,600 damage figure found
by the jury. When the trial court denied that motion, Pickering appealed to this Court.
¶5. Pickering raises the following issues on appeal:
I. WHETHER THE TRIAL COURT ERRED IN GRANTING THE DEFENDANT'S
MOTION FOR CREDIT FOR SETTLEMENT BY CO-DEFENDANTS WHERE THE
JURY WAS AWARE THAT THERE HAD BEEN TWO DEFENDANTS IN THE CASE,
AND THAT NOW THERE WAS ONLY ONE DEFENDANT IN THE CASE.
II. WHETHER THE PLAINTIFFS WERE ENTITLED TO A PEREMPTORY
INSTRUCTION ON FAULT GIVEN THAT THE PLAINTIFF'S EXPERT WAS THE
ONLY CREDENTIALED WITNESS THAT RENDERED AN OPINION ON FAULT,
WHICH OPINION WAS UNREFUTED BY THE DEFENDANT.
III. WHETHER PLAINTIFF WAS ENTITLED TO AN INSTRUCTION ON ABSOLUTE
LIABILITY GIVEN THAT THE PLAINTIFF'S BASIS FOR RECOVERY WAS THAT
HIS INJURIES WERE CAUSED BY THE DEFECTIVE AND UNREASONABLY
DANGEROUS CONDITION OF THE IMT TRACTOR.
IV. WHETHER THE TRIAL COURT ERRED IN GIVING PROPOSED JURY
INSTRUCTION NO. D-9.
V. WHETHER THE TRIAL COURT ERRED IN GIVING PROPOSED JURY
INSTRUCTION NO. D-7.
VI. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE
INTERROGATORY FORM OF THE VERDICT WHICH FAILED TO SET OUT EVERY
ELEMENT OF THE ACTION BEFORE THE JURY.
VII. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GIVE PROPOSED
JURY INSTRUCTION NO. P-6.
VIII. WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT THE
PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT IN LIGHT OF THE FACT THAT
THE DEFENDANT WAS SANCTIONED BY THE UNITED STATES.
IX. WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT THE
PLAINTIFF'S MOTION FOR ADDITUR.
LEGAL ANALYSIS
I. WHETHER THE TRIAL COURT ERRED IN GRANTING THE DEFENDANT'S
MOTION FOR CREDIT OF SETTLEMENT BY CO-DEFENDANTS WHERE THE
JURY WAS AWARE THAT THERE HAD BEEN TWO DEFENDANTS IN THE CASE,
AND THAT NOW THERE WAS ONLY ONE DEFENDANT IN THE CASE.
¶6. Pickering contends that the $40,000 he received from the settling co-defendants should not have been
subtracted from the amount that IMT, the non-settling defendant, owed. Pickering relies on Whittley v.
City of Meridian, 530 So. 2d 1341, 1346 (Miss. 1988) for the proposition that there are two acceptable
practices for determining damages in the situation where co-defendants are involved and one co-defendant
has settled with the plaintiff. Under the first procedure the defendant, is allowed "to show, either by the
plaintiff or proper witnesses or evidence, that a settlement has been made with one or more of the
defendants," without disclosing the amount of the settlement to the jury. The second acceptable procedure
allows the parties to stipulate, outside of the presence of the jury, that a settlement has been made by one or
more of the defendants and the amount of the settlement. The jury would not be informed of the settlement
or the payment, and if a verdict were returned for the plaintiff, the trial judge would reduce the amount
awarded by the jury by the amount of the settlement by the other defendants.
¶7. Pickering asserts that the Mississippi Supreme Court has recognized that the second procedure is
preferable. Pickering asserts that as soon as the jury became aware of the fact that there were other
defendants in the case, the court should have informed the jury why the other defendants were not present.
Further he contends that the jury was to be informed about the other defendants in the suit, but not of the
settlement with them.
¶8. Pickering argues that upon calling the docket, the Clerk announced the litigants, including the two
settling defendants. At no time were the jurors given a Whittley instruction. The lower court did not instruct
the jury as to who the other parties were, what role they played in the case, that they had made a settlement
with the plaintiff, or that any amount awarded by the jury would be reduced by the amount paid by the
settling defendants. Pickering argues that when the trial court reduced the amount of damages that the jury
awarded to appellant by the amount of the settlements made by the other parties it went against both what
the jury was trying to accomplish by its $90,600 award, rewarded in accordance with their instructions, and
the basis for the holding in Whittley.
¶9. Finally Pickering argues that since the procedures for determining the damages due to a plaintiff were
not followed, Pickering's judgment should not be reduced by the amount of the settlement by Pickering with
the prior co-defendants.
¶10. IMT asserts that Pickering's only basis for arguing to this Court that no credit should have been given
for the prior settlement of the co-defendants is that, in announcing this case, the Circuit Clerk inadvertently
mentioned one of the settling co-defendants as still a party in the case. IMT asserts that no objection was
made by Pickering on the record; there was no request for a mistrial; there was no request by the Pickering
for the court to instruct the jury in any manner whatsoever as to this inadvertent announcement. Without an
objection IMT asserts that Pickering has therefore waived any objection. Further IMT argues that if
Pickering's counsel felt aggrieved by the Circuit Clerk's inadvertent announcement of a co-defendant to the
jury, counsel could have at any time informed the jury that Pickering had settled with the co-defendant.
With this, IMT contends that the trial court correctly calculated and granted credit for the settlement with
the co-defendants.
¶11. This Court has announced an acceptable procedure to be used to determine the damages due a
plaintiff where co-defendants are involved and one co-defendant has settled with the plaintiff. That
procedure allows the jury to be informed of the existence of a settlement but not the amount of settlement (if
settlement occurs after the trial begins then it will be necessary to inform the jury why the defendants are no
longer present). Whittley v. City of Meridian, 530 So. 2d 1341, 1346 (Miss. 1988). If the jury returns a
judgment in excess of the settlement the judge can simply adjust the judgment by the amount of the
settlement. Id.
¶12. Here, the Circuit Clerk called the case as Pat Pickering v. IMT, a Foreign Corporation, and Garner
Ford Tractor Company, a Mississippi Corporation. However, the trial judge announced the case as Pat
Pickering v. IMT, a Foreign Corporation. Pickering made no objection to the Circuit Clerk's error.
¶13. There is no evidence in the record that the parties stipulated, outside the presence of the jury that a
settlement had been made. However, the jury was not informed of the settlement, and the verdict was in
favor of the plaintiff. The trial judge then reduced the amount awarded by the jury by the amount of the
settlement by the other defendants. This is clearly the correct procedure pursuant to this Court's decision in
Wood v. Walley , 352 So.2d 1083, 1085 (Miss. 1977), and Whittley v. City of Meridian, 530 So.2d
1341, 1346 (Miss. 1988) for cases arising prior to the effective date of Miss. Code Ann. § 85-5-7. The
cause of action in the present case arose prior to the July 1, 1989 effective date of § 85-5-7, and the
holding in Wood is, accordingly, clearly applicable to the case at bar.
¶14. It should be noted, however, that the Fifth Circuit Court of Appeals very recently issued an Erie-
guess as to whether this Court would continue to apply this dollar-for-dollar or "pro-tanto" credit in cases
arising after the effective date of Miss. Code Ann. § 85-5-7. See: Krieser v. Hobbs, 166 F.3d 736 (5th
Cir. Jan. 28, 1999). The Fifth Circuit noted the near-universal rule that the pro-tanto credit was inapplicable
in jurisdictions in which joint-and-several liability had been modified or abolished. See: Hoch v. Allied-
Signal, Inc., 24 Cal.App.4th 48, 29 Cal.Rptr.2d 615, 621-26 (Cal.App.1994); Smith v. Zufelt, 880
P.2d 1178, 1183-88 (Colo.1994); Kussman v. City and County of Denver, 706 P.2d 776, 777-82
(Colo.1985).
¶15. The Fifth Circuit concluded that "(w)e think it is clear that the Mississippi Supreme Court, if faced with
this question, would follow the large number of other courts who have understood legislative limitation of
joint-and-several liability to render incompatible a pro-tanto credit for non-settling tortfeasors." Krieser,
166 F.3d at 743(1). Given that the present case arose prior to the July 1, 1989 effective date of § 85-5-7,
it is unnecessary for this Court to address the effect of § 85-5-7's limitation of joint and several liability in
the present case. This Court limits its holding on issue I to the facts of the present case and expressly
reserve judgment on whether a differing result would be warranted in cases involving causes of action
arising after the effective date of § 85-5-7. The ruling of the lower court is affirmed.
II. WHETHER THE PLAINTIFFS WERE ENTITLED TO A PEREMPTORY
INSTRUCTION ON FAULT GIVEN THAT THE PLAINTIFF'S EXPERT WAS THE
ONLY CREDENTIALED WITNESS THAT RENDERED AN OPINION ON FAULT,
WHICH OPINION WAS UN-REFUTED BY THE DEFENDANT.
¶16. Pickering next argues that his request for a peremptory instruction on defect should have been granted
in view of Dr. Talbot's unrefuted expert testimony as to the dangerous character of the design of the IMT
tractor clutch activation mechanism. Pickering relies on the case of McCary v. Caperton, 601 So. 2d 866(Miss. 1992) wherein this Court held that a peremptory instruction as to the defendants liability was
properly granted where the plaintiff introduced undisputed evidence of fault and damages.
¶17. Pickering contends that Dr. Talbot testified extensively as to how the clutch activation mechanism of
the IMT tractor as designed was unreasonably dangerous. Dr. Talbot stated that after examination of the
IMT tractor purchased by the appellant and the schematics of the IMT tractor, it was his expert opinion
that the IMT tractor was unreasonably dangerous. Pickering contends that Dr. Talbot also testified that it
was foreseeable that the clutch would get hung up in the floorboard, due to the design of the IMT clutch
activation mechanism, and that an operator would get off the tractor and try to pry the clutch up without
putting the tractor in neutral and/or without turning the tractor off.
¶18. Finally Pickering argues that the testimony was unrefuted by the defendant and defendant called no
witnesses. Therefore, Pickering contends that he was entitled to a peremptory instruction on defect in view
of the IMT's concession that there was a defect.
¶19. IMT contends that the mere existence of a defect in a product does not entitle a plaintiff in a products
liability suit to a peremptory instruction on "fault" or "absolute liability." IMT relies on the case of Sperry-
New Holland v. Prestage, 617 So. 2d 248, 253 (Miss. 1993), for the proposition that to prevail in a
products liability case, the plaintiff must prove not only a defect in the product, but also that the defect made
the product "unreasonably dangerous."
¶20. IMT argues that a jury issue existed as to whether the sticking clutch made the IMT tractor
"unreasonably dangerous." IMT argues that Pickering conceded in his testimony when the clutch stuck, he
was not in any danger as he sat on the tractor. Further, IMT states that it was only when the plaintiff stood
in front of the tractor wheel and pried the clutch up with the motor running and the tractor in forward gear
that there was any danger.
¶21. Finally, IMT argues that the jury returned a verdict in favor of Pickering, thus error, if any, is cured
regarding the jury instruction. IMT relies on Dunn v. Jack Walker's Audiovisual Center, 544 So. 2d
829, 831 (Miss. 1989), for the proposition that errors in jury instructions are moot where the plaintiff
receives the most favorable result he could have received if the instruction had been given.
¶22. The standard of review for whether a peremptory instruction should be granted is the same as the
criteria for a directed verdict. Herrington v. Spell, 692 So. 2d 93, 97 (Miss. 1997); Wilner v. Miss.
Export R. Co., 546 So. 2d 678, 681 (Miss. 1989). Because the request for a peremptory instruction is the
"functional equivalent of a motion for a directed verdict under Rule 50(a)," we apply the same standard to
both. Id.
¶23. The evidence, in passing on a request for peremptory instruction or j.n.o.v., will be viewed in the light
most favorable to the party opposed to the motion, giving the benefit of all the favorable inferences that may
be reasonably drawn from the evidence, and considering any uncontradicted evidence offered by the
moving party. Turner v. Turner, 524 So. 2d 942, 944 (Miss. 1988) citing Weems v. American
Security Insurance Co., 450 So. 2d 431, 435 (Miss. 1984); Bay Springs Forest Products, Inc. v.
Wade, 435 So. 2d 690, 693 (Miss. 1983). If the facts so considered point so overwhelmingly in favor of
the movant that reasonable men could not have arrived at a contrary verdict, then the peremptory
instruction should be granted. McMillan v. King, 557 So.2d 519, 522 (Miss. 1990).
¶24. At trial Pickering's expert described how the clutch activation mechanism was unreasonably
dangerous. However, Pickering testified that when the clutch stuck, he was not in any danger as he sat on
the tractor. The danger arose when Pickering stood in front of the tractor wheel and pried the clutch up
with the motor running and the tractor in gear. To prevail in a products liability case, the Plaintiff must prove
not only a defect in the product, but also that the defect made the product "unreasonably dangerous."
Sperry-New Holland v. Prestage, 617 So. 2d 248, 253 (Miss. 1993).
¶25. Dispositive of the issue here is that errors in jury instructions are moot where the plaintiff receives the
most favorable result he could have received if the instruction had been given. Dunn v. Jack Walker's
Audiovisual Center, 544 So. 2d 829, 831 (Miss. 1989). In this case, the most favorable result for
Pickering on a liability instruction was a verdict for Pickering. In the lower court, Pickering received the
most favorable verdict. Therefore, here, because the jury found for Pickering and he received the most
favorable result, the lower court did not err by not granting a peremptory instruction on defect.
III. WHETHER PLAINTIFF WAS ENTITLED TO AN INSTRUCTION ON ABSOLUTE
LIABILITY GIVEN THAT THE PLAINTIFF'S BASIS FOR RECOVERY WAS THAT
HIS INJURIES WERE CAUSED BY THE DEFECTIVE AND UNREASONABLY
DANGEROUS CONDITION OF THE IMT TRACTOR.
¶26. Pickering argues that he did not base his action on any negligent acts of IMT. Further, Pickering
contends that his expert witness offered unrefuted testimony that the design defect of the IMT tractor,
which allowed the clutch activation mechanism to become hung-up in the floorboard of the tractor, was
unreasonably dangerous. Therefore, Pickering contends that he was entitled to an instruction on absolute
liability. Pickering relies on Falstaff Brewing Corp. v. Williams, 234 So. 2d 620, 623 (Miss. 1970) for
the proposition that "[A] manufacturer incurs an absolute liability when an article that he has placed on the
market, knowing that it is to be used without inspection, proves to have a defect that causes injury to human
beings."
¶27. However, there is no evidence in the record that Pickering requested or was denied an absolute
liability instruction. The trial judge cannot be put in error on a matter which was not presented to him for
decision. Cossitt v. Federated Guaranty Mutual Ins. Co., 541 So.2d 436, 446 (Miss. 1989)
Therefore, this assignment of error is without merit.
IV. WHETHER THE TRIAL COURT ERRED IN GIVING PROPOSED JURY
INSTRUCTION NO. D-9.
¶28. Pickering next contends that comparative negligence, or other defense, to negligence, are not
applicable to an action sounding in strict liability. Sperry-New Holland v. Prestage, 617 So. 2d 248, 264
(Miss. 1993). In the case at bar, Jury Instruction D-9 constituting an instruction on contributory negligence
was given by the lower court. Pickering argues that in the case at bar his claim was based solely on the
theory of strict liability and no evidence of the defendant's negligence was produced or tried. With that,
Pickering contends that IMT should not have been allowed a comparative negligence instruction, a defense
to a tort of which it was not accused.
¶29. IMT cites Miss. Code Ann. §11-7-15 (1972), which provides that:
In all actions hereafter brought for personal injuries... the fact that the person injured...may have
been guilty of contributory negligence shall not bar a recovery, but damages shall be diminished by the
jury in proportion to the amount of negligence attributable to the person injured....
(emphasis added)
¶30. In the case of Sperry-New Holland v. Prestage, 617 So. 2d 248 (Miss. 1993), the jury's damage
award was reduced by 35 percent due to Prestage's comparative negligence. Until that time, this Court had
never definitively stated that comparative negligence is applicable to strict liability cases. The issue was not
raised on appeal and was not before this Court. This Court declined to address the issue and affirmed the
reduction.
¶31. However, in Horton v. American Tobacco Co., 667 So. 2d 1289 (Miss. 1995), comparative
negligence was applied to a strict liability action. In Horton, the trial began with the plaintiffs pursuing two
theories of tort liability: negligence and strict liability. At the close of the plaintiffs' case-in-chief, the trial
court granted a partial directed verdict dismissing the plaintiffs' claims of negligence. The case was
presented to the jury on the sole theory of strict liability. Although the case was submitted solely on the issue
of strict liability, the defendant in Horton was granted a comparative negligence instruction by the trial
court. The jury returned a verdict in favor of the plaintiffs, but awarded zero damages. Furthermore, in
Horton, a majority of this Court also held that assumption of the risk is subsumed in the comparative fault
doctrine in a strict liability case.
¶32. In the case sub judice, the trial court allowed the following instruction:
Instruction D-9
If you find from a preponderance of the evidence that the Plaintiff failed to use reasonable due care
either in not taking the tractor back to the dealer to fix the clutch after the first time the clutch stuck
and continuing to operate the tractor, or in unsticking the tractor clutch while standing in front of the
tractor wheel with the tractor motor running and in gear, or both, then the Plaintiff was guilty of
negligence. If you find that the Plaintiff's negligence, if any, was the sole proximate cause of the
Plaintiff's injury, then it is your duty to return a verdict for the Defendant. Otherwise, if you find that
Plaintiff's negligence, if any, proximately contributed to his own injury, then you must, under the law,
reduce any award that you might otherwise award the Plaintiff by the proportion of the causal
negligence, or fault, that you attribute to the Plaintiff.
¶33. In accordance with Horton, the trial court did not err in allowing the comparative negligence
instruction to the jury.
V. WHETHER THE TRIAL COURT ERRED IN GIVING PROPOSED JURY
INSTRUCTION NO. D-7.
¶34. Pickering argues that a proposed jury instruction should be granted if it is supported by both the law
and by the evidence presented at trial. Munford Inc., v. Fleming, 597 So. 2d 1282, 1286 (Miss. 1992).
Pickering contends that jury instruction D-7 basically affirmatively informs the jury that Pickering's actions
constituted a misuse of the tractor, in effect a peremptory instruction in regards to the issue of misuse.
¶35. Pickering relies on the case of Ford Motor Co. v. Matthews, 291 So. 2d 169 (Miss.1974), where
the plaintiff was killed when he was run over by a tractor after starting the engine of the tractor while
standing in front of a tire while leaving the tractor in gear.
¶36. Pickering argues that Jury instruction D-7 does not give the jury the option to determine first whether
his action did in fact constitute a misuse of the tractor. Further, argues Pickering, the instruction ignores the
threshold issue of whether the IMT tractor was unreasonably dangerous as a result of the design of the
clutch activation mechanism and if the jury finds that the tractor was unreasonably dangerous the issue of his
misuse or non-misuse is irrelevant.
¶37. Finally, Pickering contends that IMT's Proposed Jury Instruction No. D-7, which is not supported by
either the law or the evidence, is confusing to the jury and should not have been granted.
¶38. IMT argues that this instruction was the converse of Pickering's Instruction P-5 instructing the jury that
if the plaintiff was guilty of unforeseeable misuse of the tractor which caused his injuries, then the jury should
return a verdict for the defendant.
¶39. Finally IMT contends that Pickering prevailed on the issue of foreseeable/unforeseeable misuse and the
jury granted a verdict for the plaintiff. Further, IMT contends that even there were any error in Instruction
D-7, it was cured by the jury's returning a favorable verdict for Pickering on the issue of liability. Dunn v.
Jack Walker's Audiovisual Center, 544 So. 2d 829, 831 (Miss. 1989).
¶40. At trial the following instruction D-7 was given to the jury:
The Court instructs you that if you find that Plaintiff's injuries were caused by his misuse of the tractor
and that this misuse of the tractor was not reasonably foreseeable by the manufacturer of the tractor,
then it is your duty to return a verdict for the Defendant.
¶41. In Mississippi, misuse as a bar to recovery for products liability is a question of fact for the jury.
Materials Transportation Co., v. Newman, 656 So. 2d 1199, 1202 (Miss.1995); Early-Gary, Inc. v.
Walters, 294 So. 2d 181, 186 (Miss. 1974).
¶42. Conversely, the trial judge granted jury instruction P-5 which states:
Ladies and gentlemen of the jury, if you find by a preponderance of the evidence in this case that: (1)
the Industrija Masina I Traktora was defective; and (2) it was reasonably foreseeable to Industrija
Masina I Traktora that Pat Pickering, or any other consumer, would attempt free the clutch from the
floorboard of the tractor while the tractor motor was running and was otherwise in gear and without
putting the tractor in neutral, then you must find that this was not such a misuse of the tractor as to
relieve Industrija Masina I Traktora from strict liability for the defective condition of the tractor.
¶43. In the case sub judice, the jury returned a verdict for Pickering. The jury also found that the act of
unsticking the clutch with the tractor running and in gear was a foreseeable misuse of the tractor. "[E]rrors in
jury instructions are deemed, harmless, moot or immaterial...[where] the jury verdict on the point at issue
gave the appealing party the most favorable result he could have received had the trial court handled the
point correctly." Horton v. American Tobacco Co., 667 So. 2d 1289, 1292 (Miss. 1995). The trial court
did not err in granting this instruction.
VI. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE
INTERROGATORY FORM OF THE VERDICT WHICH FAILED TO SET OUT EVERY
ELEMENT OF THE ACTION BEFORE THE JURY.
¶44. Pickering argues that the special verdict form failed to set out separately the issues of fact as raised by
the parties. Further, Pickering argues that the special verdict form failed to allow the jury to determine
whether the actions of Pickering, in fact, constituted a misuse of the tractor under the circumstances.
Pickering contends that it included negligence elements which were not at issue in this action. Pickering
relies on the case of Jones v. Westinghouse Elec. Corp., 694 So. 2d 1249 (Miss. 1997), wherein the
plaintiff objected to the form of the special verdict instruction submitted and this Court held that the failure
to include the issues of fact as requested by the Plaintiff was reversible error. Id. at 1251. Therefore,
Pickering argues, the special verdict form should not have been given as such, but should have been
modified to separately set out every issue of fact, and to include any reference to the negligence of
Pickering.
¶45. IMT contends that the trial court submitted the case to the jury based on the interrogatories. With the
exception of the question regarding Pickering's comparative negligence, Pickering's attorney made no
objections at trial or in this portion of his appeal brief to the elements set forth in these interrogatories or to
any lack of any element that Pickering claims should have been set forth in the jury interrogatories.
¶46. The trial court allowed the following form of the verdict:
1(a) Was the IMT tractor defective, and did it reach Pat Pickering without substantial change?
(b) Was the act of unsticking the clutch with the tractor running and in gear a foreseeable misuse of the
tractor?
(If your answer to either is "no" go no further.)
2 Was the condition of the tractor a direct and proximate cause of any injuries received by the
Plaintiff?
(If your answer is "no" go no further.)
3.Was the Plaintiff negligent in unsticking the clutch on the tractor?
4. If so, was the Plaintiff's negligence a direct and proximate cause of any injuries he received?
5. If so, was the Plaintiff's negligence, if any, in unsticking the clutch reasonably foreseeable by the
manufacturer of the tractor?
6. What do you find the Plaintiff's total damages, unreduced by any percentage of fault, if any, to be
as a result of the injuries received?
7. What, if any, was the percentage which the condition of the tractor contributed to the injuries
received by the Plaintiff?
8. What was the percentage which any negligence of the Plaintiff contributed to his injuries?
(The percentages in 7 and 8 must total 100%.)
¶47. Miss. Code Ann. § 11-7-157 (1972), states, "No special form of the verdict is required, and where
there has been a substantial compliance with the requirements of the law in rendering a verdict, a judgment
shall not be arrested or reversed for mere want of form therein." This Court in Mississippi Valley Gas
Co., v. Estate of Walker, No. 95-CA-00907-SCT, 1998 WL 449678 (Miss.), set forth the applicable
test for determining whether a verdict is sufficient as follows:
[T]he basic test with reference to whether or not a verdict is sufficient as to form is whether or not it is
an intelligent answer to the issues submitted to the jury and expressed so that the intent of the jury can
be understood by the court. This well-established rule of law has long been recognized by this
Court...
Mississippi Valley Gas Co., v. Estate of Walker,725 So.2d 139, _ (Miss. 1998) (quoting Harrison v.
Smith, 379 So.2d 517, 519 (Miss. 1980).
¶48. Rule 49(b) of the Mississippi Rules of Civil Procedure provides:
The court may require a jury to return only a special verdict in the form of a special written finding
upon each issue of fact. In that event the court may submit to the jury written questions susceptible of
categorical or other brief answer or may submit written forms of the several special findings which
might properly be made under the pleadings and evidence; or it may use such other method of
submitting the issues and requiring written findings thereon as it deems appropriate. The court shall
give to the jury such explanation and instruction concerning the matter thus submitted as may be
necessary to enable the jury to make its findings upon each issue. If in so doing the court omits any
issue of fact raised by the pleadings or by the evidence, each party waives his right to a trial by jury of
the issue so omitted unless before the jury retires he demands its submission to the jury. As to an issue
omitted without such demand the court may make a finding; or if it fails to do so, it shall be deemed to
have made a finding in accord with the judgment on the special verdict.
¶49. In accordance with relevant principles of law regarding the special form of the verdict, the form of the
verdict in this case was sufficient. The trial court did not err in allowing the interrogatory form of the verdict
because the form accurately set out the elements of the action.
VII. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GIVE PROPOSED
INSTRUCTION NO. P-6.
¶50. Pickering argues that the lower court erred in refusing to grant his proposed jury instruction P-6.
Pickering contends that instruction P-6 correctly embodies the law of what constitutes an assumption of the
risk and that it is also supported by the evidence deduced at trial. Pickering relies on the case of Munford
Inc., v. Fleming, 597 So. 2d 1282 (Miss. 1992). In Munford, the plaintiff slipped and fell in a puddle of
water which leaked from the spout of a bottle of spring water that had been placed on one of the store's
shelves by an employee. The lower court granted the following instruction:
[T]he Court instructs the jury that if you find from a preponderance of the evidence in this case that
the water on the floor had dripped there from a container of water and that container of water had
been placed on the shelf by an employee of Defendant Munford, Inc. and that the Defendant's
employees failed to inspect the container of water for leakage, then the Defendant Munford, Inc. was
negligent and your verdict must be for the Plaintiff, Bettie Fleming.
597 So. 2d at 1286. This Court held that the instruction accurately stated the law, and the instruction had
an evidentiary basis.
¶51. IMT contends that the refusal to grant instruction P-6 did not constitute reversible error. IMT
contends that no assumption of the risk jury instruction was given by the trial court. Therefore, Pickering's
requested instruction as to what did constitute assumption of the risk was moot and irrelevant and obviously
would have served only to confuse the jury.
¶52. A review of the record does not reveal the actual proposed instruction P-6. However, Pickering
provides the following in his brief and IMT does not dispute the wording:
Ladies and gentlemen of the jury, if you find by a preponderance of the evidence in this case that the
Pat Pickering:
(1) But for the fatigue and hurry, would have known that in getting off of the Industrija Masina I
Traktora tractor while it was running to attempt to free the clutch from the floorboard of the Industrija
Masina I Traktora tractor while the tractor was otherwise in gear and while he was standing in front
of the rear wheel of the tractor, he was placing himself in a situation inconsistent with his safety;
(2) That it was the end of his workday, and he was tired and fatigued, and attempting to finish the job
he was working on as soon as possible, he did not appreciate the danger; and
(3) He therefore did not deliberately and voluntarily choose to expose himself to a perceived danger,
Then you must find that Pat Pickering, by virtue of that state of mind, did not assume the risk of injury.
Then your verdict shall be for Pat Pickering for all damages sustained, and against Industrija Masina I
Traktora.
The trial judge refused this proposed instruction because it was argumentative. The general rule
promulgated by this Court which dictates instructions to the jury are to be taken collectively rather than be
given individual consideration. So long as all the instructions read together adequately and properly instruct
the jury on the issues, an individual instruction given to the jury will not constitute reversible error. Detroit
Marine Engineering v. McRee, 510 So. 2d 462, 467 (Miss.1987); Garcia v. Coast Electric Power
Ass'n, 493 So. 2d 380 (Miss. 1986); Miss. Farm Bureau Mutual Ins. Co. v. John W. Todd, et al,
492 So. 2d 919 (Miss. 1986). The trial judge properly refused proposed jury instruction P-6.
VIII. WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT THE
PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT IN LIGHT OF THE FACT THAT
THE DEFENDANT WAS SANCTIONED BY THE UNITED STATES.
¶53. Pickering contends that by virtue of the powers granted to the President of the United States under the
International Emergency Economic Power Act (IEEPA), 50 U.S.C. § 1701 (1994), President Bush issued
Executive Order No. 12808, blocking interests in property owned by the Governments of Serbia and
Montenegro. Executive Order No. 12810, 57 Fed. Reg. 23,033 (1992). Subsequently, Executive Order
No. 12810, 57 Fed. Reg. 24,437 (1992), and Executive Order No. 12831, 58 Fed. Reg. 5253 (1993),
were issued prohibiting trade and other transactions with the Federal Republic of Yugoslavia. These
sanctions were expanded by President Clinton blocking "property and interests in property of all
commercial, industrial, or public utility undertakings or entities organized or located in the Federal Republic
of Yugoslavia (Serbia and Montenegro)..." and prohibiting trade-related dealings by the United States
persons involving "United Nations Protected Areas in the Republic of Croatia and those areas of the
Republic of Bosnia and Herzegovina controlled by Bosnian Serb forces. Executive Order No. 12846, 58
Fed. Reg. 25,771 (1993).
¶54. Pickering filed a Motion to Strike Defense of Industrija Masina I Traktora (IMT) and Imposition of
Default Judgment, which motion was not granted by the lower court. Pickering asserts that IMT as a foreign
corporation whose principal place of business is located in Belgrade, Serbia, was subject to those sanctions
provided for in Executive Orders 12808, 12810, 12831, and 12846. Pickering argues that it is
inconceivable to the import of these Presidential edicts that businesses and the business men and women
who represent them can be summarily deported, their assets seized, and their governmental leaders tried for
war crimes; yet IMT be allowed to use a Mississippi court to protect the state owned manufacturer of a
defective tractor while the other elements of the same Serbian government are punished by the greater
sanction of deprivation of liberty. For these reasons Pickering argues that default judgment in his favor
should have been entered.
¶55. In his brief, Pickering fails to cite any authority for obtaining a default judgment against IMT. Failure to
cite authority in support of claims of error precludes this Court from considering the specific claim on
appeal. R.C. Petroleum, Inc. v. Hernandez, 555 So. 2d 1017, 1023 (Miss. 1990).
IX. WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT THE
PLAINTIFF'S MOTION FOR ADDITUR.
¶56. Finally, Pickering argues that the trial court erroneously granted Defendant's Jury Instruction D-9
allowing the jury to reduce the damages awarded by the Pickering's comparative negligence. Specifically,
Pickering argues that additur is warranted by the fact that his evidence of fault and damages were unrefuted
by the defendant. Pickering relies on the case of Leach v. Leach, 597 So. 2d 1295, 1297 for the
proposition that each case involving the issue of additur must "necessarily be decided on its own facts."
Pickering contends that damages were not disputed by IMT, there was extensive testimony as to the pain
and suffering of Pickering resulting from the IMT tractor running over him, Dr. Barrett's deposition was read
into evidence in support of the medical bills and as to the permanent nature of Pickering's injuries, and Nat
Fentress offered testimony that Pickering had incurred average lost profits of $12,000 for the three years
immediately following the accident all of which went unrefuted by IMT. For these reasons Pickering
contends that the lower court should have granted the motion for additur.
¶57. IMT contends that whether or not it refuted the testimony of any witness concerning pain and suffering
is irrelevant; it is for the jury to determine the amount of damages adequate to compensate the plaintiff.
Further, IMT contends that Pickering proffers two grounds for additur, the first is a renewed argument that
comparative negligence should not have been applied which has been treated supra, and the second ground
for additur was not presented to the trial court in plaintiff's motion and has been waived. IMT relies on the
case of Lewis v. Hiatt, 683 So. 2d 937, 940 (Miss. 1996) wherein this Court stated that in reviewing a
motion for additur, the Court must view the evidence in the light most favorable to the Defendant.
¶58. In reviewing a trial court's grant or denial of an additur, this Court's standard of review is limited to an
abuse of discretion. Rodgers v. Pascagoula Pub. Sch. Dist., 611 So.2d 942, 945 (Miss. 1992); State
Highway Comm'n of Mississippi v. Warren, 530 So.2d 704, 707 (Miss. 1988). The party seeking the
additur bears the burden of proving his injuries, loss of income, and other damages. We view the evidence
in the light most favorable to the defendant, giving him all favorable inferences that may be reasonably
drawn therefrom. Rodgers, 611 So.2d at 945; Odom v. Roberts, 606 So.2d 114 (Miss. 1992);
Copeland v. City of Jackson, 548 So.2d 970, 974 (Miss. 1989). Awards set by jury are not merely
advisory and generally will not be "set aside unless so unreasonable as to strike mankind at first blush as
being beyond all measure, unreasonable in amount and outrageous." Rodgers, 611 So.2d at 945 (citations
omitted). The amount of damages awarded is primarily a question for the jury. South Cent. Bell Tel. Co.
v. Ellis, 491 So.2d 212, 217 (Miss. 1986).
¶59. In the case sub judice, the jury assessed Pickering's damages at $90,600 which was reduced by $40,
000 giving IMT credit for the two settling defendants. Further, the jury attributed 75% of the fault to
Pickering. Pickering does not contend that the jury award was inadequate. However, he argues that the
credit for the two settling defendants and the deduction for comparative fault should not have been allowed.
Having disposed of these arguments in the previous issues, this assignment of error is without merit.
CONCLUSION
¶60. In conclusion, the judgment of the Simpson County Circuit Court is affirmed.
¶61. JUDGMENT AFFIRMED.
PRATHER, C.J., PITTMAN, P.J., BANKS, MILLS AND WALLER, JJ., CONCUR. McRAE,
J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED IN PART BY SULLIVAN,
P.J. COBB, J., NOT PARTICIPATING.
McRAE, JUSTICE, DISSENTING:
¶62. The majority's opinion is riddled with misinterpretations of the law. Hence, I must dissent. I write to
reaffirm my belief that it is wrong to inject negligence principles into an area of liability which is premised on
the concept of no fault strict liability.
¶63. The majority cites Sperry-New Holland v. Prestage, 617 So. 2d 248 (Miss. 1993), and Horton v.
American Tobacco Co., 667 So. 2d 1289 (Miss. 1995), as the basis for injecting comparative negligence
into strict liability. In Prestage, the plaintiff proceeded to trial under both strict liability and negligence
theories. The plaintiff's damages were reduced by a percentage of fault that the jury had assigned to him;
however, we were very careful to note that the plaintiff did not challenge the reduction of his damages on
appeal and that this Court was not deciding that comparative negligence was applicable in strict liability
cases. Prestage, 617 So. 2d at 264 n.8. In Horton, the plaintiff requested the comparative negligence
instruction over the objections of the defendant. Horton, 667 So. 2d at 1292. In neither case was the
applicability of comparative negligence to strict liability properly before us; in both instances, the plaintiff's
actions precluded us from addressing the propriety of using comparative negligence principles in a strict
liability case. The majority's reliance on these two cases is sorely misplaced.
¶64. The majority ignores our precedents going back to 1966 in State Stove Mfg. Co. v. Hodges, 189
So. 2d 113 (Miss. 1966), in which we adopted § 402A of the Restatement (Second) of Torts which
required only the elements of defect and causation in order to assess damages. On the other hand, in a
cause of action alleging negligence, the elements are duty, breach of duty, plus causation equals damages.
Where negligence is the cause of action, one examines the negligence of the defendant as well as that of the
plaintiff to determine the comparative fault of the parties; damages are assessed based on the percentage of
liability of each party. If we commingle comparative negligence in strict liability, are we to compare the
negligence of the defendant on the date the defect was manufactured the negligence of the plaintiff on the
date he is injured which is usually years later? Furthermore, and even more importantly, since the negligence
of the defendant is supplied as a matter of law, how can the jury weigh the negligence of the defendant
against that of the plaintiff when the negligence of the defendant is never a consideration?
¶65. As stated in the Restatement (Second) of Torts § 402A, a seller is liable for physical harm to the
consumer where he sells a product in a defective condition which is unreasonably dangerous to the
consumer. See Toliver v. General Motors Corp., 482 So. 2d 213, 215 (Miss. 1985); see also State
Stove Mfg Co., 189 So. 2d at 118 (adopting § 402A). The plaintiff need not prove negligence; that is
supplied as a matter of law. Toliver, 482 So. 2d at 215.
¶66. In Sperry-New Holland v. Prestage, 617 So. 2d 248 (Miss. 1993), we announced that the proper
analysis in a products liability case employs the risk-utility test. As the name implies, the test employs a
balancing of utility versus risk. Prestage, 617 So. 2d at 254. The focus is on the product, not the
consumer.
¶67. There are seven factors considered in risk-utility analysis:
1) The usefulness and desirability of the product - its utility to the user and to the public as a whole.
2) The safety aspects of the product - the likelihood that it will cause injury, and the probable seriousness of
the injury.
3) the availability of a substitute product which would meet the same need and not be as unsafe.
4) The manufacturer's ability to eliminate the unsafe character of the product without impairing its usefulness
or making it too expensive to maintain its utility.
5) The user's ability to avoid danger by the exercise of care in the use of the product.
6) The user's anticipated awareness of the dangers inherent in the product and their avoidability, because of
general public knowledge of the obvious condition of the product, or of the existence of suitable warnings
or instructions.
7) The feasability, on the part of the manufacturer, of spreading the loss by setting the price of the product
or carrying liability insurance.
Prestage, 617 So. 2d at 256 n.3.
¶68. Two of the factors, (5) and (6), take into account some consideration of the user's behavior. Like all
of the seven factors, to the extent that a user's behavior is relevant, it is relevant in deciding whether the
utility of the product is outweighed by its danger, i.e. liability. However, once the jury has found liability for
a defective product, damages are not reduced by the doctrine of comparative negligence. To do so would
amount to penalizing the plaintiff by factoring his behavior in twice.
¶69. On the flip side, as stated above, the defendant's negligence is irrelevant. It is supplied as a matter of
law. This fact makes a comparison of the negligence of the parties impossible. As noted in Harry R. Levine,
Strict Products Liability and Comparative Negligence: The Collision of Fault and No-Fault, 14 San
Diego L. Rev. 337, 356 (1977): "In essence, we would ask a jury that if they find the defendant's product
defective, irrespective of fault, they should reduce the plaintiff's damages by considering the plaintiff's
culpability in proportion to the defendant's non-culpability. This requirement may be a feat which is beyond
the prowess of an American jury." See id. (emphasis in original).
¶70. When we adopted § 402A strict-liability for products in State Stove in 1966, we did so because
there existed good reasons to do so. Imposing strict liability on the manufacturer of a defective product
shifts the loss from the consumer to the manufacturer. Toliver, 482 So. 2d at 215. The manufacturer is not
only in the best position to spread the loss among all consumers, the manufacturer alone has the power to
correct defects. Daly v. General Motors Corp., 575 P.2d 1162, 1168 (Cal. 1978).
¶71. Strict liability also has the effect of relieving the plaintiff of the burden of proving the manufacturer
negligent. Toliver, 482 So. 2d at 215. As noted in Toliver, it is often difficult, if not impossible, to prove
negligence on the part of the manufacturer. Strict liability "assists the plaintiff who could not, otherwise,
satisfy his burden of showing how the product became defective." Id at 216.
¶72. In addition, the doctrine of strict liability provides an incentive other than the demands of the
marketplace for manufacturers to create safer products. Comment, Comparative Fault and Products
Liability: A Dangerous Combination, 52 Mo. L. Rev. 445, 448 (1987).
¶73. Applying comparative negligence principles to strict liability for manufacturing defective products
undermines the very reasons for strict liability. It reduces the incentive of the manufacturer to produce safer
products; it also reduces the incentive to develop anti-contributory negligence mechanisms. Aaron D.
Twerski, The Use and Abuse of Comparative Negligence in Products Liability, 10 Ind. L. Rev. 797,
800 (1977). See also Kimco Dev. Corp. v. Michael D's Carpet Outlets, 637 A.2d 603, 607 (Pa.
1993) ("The deterrent effect of imposing strict product liability standards would be weakened were we to
allow actions based upon it to be defeated, or recoveries reduced by negligence concepts."); Armstrong v.
Cione, 738 P.2d 79, 83 (Haw. 1987) (barring recovery against manufacturer or distributor by applying
comparative negligence principles would result in inefficient economic incentives to produce safe products
and would place a cost for partially unsafe products on the consumer); Bell v. Jet Wheel Blast, 462 So.
2d 166, 172 (La. 1985) ("Reduction of the plaintiff's award in this type of case would only tend to defeat
the basic goals of strict products liability doctrine by reducing economic incentive for product quality control
and by forcing the injured individual to underwrite a loss himself. . . ."); Lippard v. Houdaille Indus., 715
S.W.2d 491, 493 (Mo. 1986) (en banc) ("If the defective product is a legal cause of injury, then even a
negligent defendant should be able to recover.").(2)
¶74. Comparative negligence principles have no place in a theory of strict liability designed without regard
to fault. The negligence of the plaintiff is as irrelevant as that of the defendant. I agree with Justice Mosk
who wrote,
The defective product is comparable to a time bomb ready to explode; it maims its victims
indiscriminately, the righteous and the evil, the careful and the careless. Thus, when a faulty design or
otherwise defective product is involved, the litigation should not be diverted to consideration of the
negligence of the plaintiff. The liability issues are simple: Was the product or its design faulty, did the
defendant inject the defective product into the stream of commerce, and did the defect cause the
injury? The conduct of the ultimate consumer victim who used the product in the contemplated or
foreseeable manner is wholly irrelevant . . . .
Daly v. General Motors Corp., 575 P.2d at 1183-84 (Mosk, J., dissenting).
¶75. As to the damages calculation, this is a strict liability case. No comparative negligence should be
considered. In each of the cases of Estate of Hunter v. General Motors Corp., No. 96-CA-01278-
SCT, 1999 WL 12908 (Miss. Jan. 14, 1999), Horton v. American Tobacco Co., 667 So. 2d 1289(Miss. 1995), and Sperry-New Holland v. Prestage, 617 So. 2d 248 (Miss. 1993), negligence was
claimed, or a comparative negligence instruction was requested, by the plaintiff. Such was not the
case here. In fact, during the jury instruction conference, the following colloquy, ignored by the majority,
occurred between the court and plaintiff's counsel:
THE COURT: Is it your argument that this is not a contrib case?
MR. RINGER: (Counsel for Plaintiff Pickering): My argument is this is not a negligence case, I mean,
you can't have comparative negligence or contributory negligence when you have no negligence, and
the Court will recall that the pleadings were amended by order so that there are no allegations in here
unlike this [Sperry-New Holland] case which was a case in which the allegations and the ruling of the
court were based upon there having been a complaint that sounded both in tort, strict liability and
negligence. This is not a case that sounds whatsoever in negligence and any contributory or
comparatively negligence is like it's trying to contribute to a negligence that's never been plead proven
or in the case.
....
MR. RINGER: Yes, sir. He plead negligence as a defense to a complaint that initially alleged
negligence, but then we amended and the order of Court was that negligence was out of this case. So,
there hasn't been any proof on it.
THE COURT: Okay. Show me the order.
MR. POWELL: (Counsel for Defendant IMT): No. He doesn't need to show you the order. I agree
there was an order taking negligence out.
....
THE COURT: . . . I'm going to give it [instruction D-9] just out of abundance for precaution,
but if I was defending, I wouldn't want it.
(emphasis added). The language to which counsel and the judge referred is found in the circuit court's order
of April 15, 1995:
7. Plaintiff amends its Complaint, such that it only seeks to recover on causes of action for which the
Defendants may be found strictly or absolutely liable; . . .
The judge explicitly limited this case to strict or absolute liability. This case is devoid of any consideration of
negligence. There is no need nor means to speak of such in this case. This is not a comparative negligence
case. The judge admitted he gave the comparative negligence instruction out of an "abundance of
precaution." He even stated he would not want the instruction if he were defense counsel. He was wise in
stating he would not want the instruction, because it should be reversible error. The jury should not have
been advised about comparative negligence nor given a verdict form on which they could apportion fault by
which their damages award could be reduced. Counsel objected not only to the instruction D-9 on
comparative negligence, but also to the Form of the Verdict:
THE COURT: David [Ringer-Pickering's counsel], I'm assuming you are objection to this in its
entirety and every individual part thereof.
MR. RINGER: Well, that's true, Judge, . . .
¶76. Yet, while it is obvious the damages should not have been reduced under a comparative negligence
scheme, the settlements also should not have used to reduce damages. The majority does not diligently
apply the law when it affirms the trial court's reduction of damages. The majority faithfully cites Whittley v.
City of Meridian, 530 So. 2d 1341 (Miss. 1988), as governing in this case. While the procedures
propounded in Whittley and reiterated by the majority are important, neither is at issue here. Procedure 1
requires the jury be informed of a settlement, no such statement was made. While, the clerk-not a party
hereto and despite the pre-trial settlements-erroneously announced as the case as "Pat Pickering v. IMT, a
Foreign Corporation, and Garner Ford Tractor Company, a Mississippi Corporation." The Court corrected
the Clerk by stating: "Ladies and gentlemen, we are starting the trial of a civil case styled Pat Pickering
versus IMT, a Foreign Corporation." The jury was unaware of the settlement situation; they heard the
correction of a simple error. The majority admits that no Whittley instruction was given. Indeed, the
majority admits that the jury was not informed of the settlement. Procedure 1 is not at issue. As to
Procedure 2, it requires a stipulation, outside the jury's presence, of which the majority admits there is no
evidence in the record. Hence, Whittley is inapplicable.
¶77. When considering the issue of settlements, it is also wise-despite the majority's failure to do so-to
consider the seminal case of McBride v. Chevron U.S.A., 673 So. 2d 372 (Miss. 1996), in which we
adopted the settlement-first method, which was used in this case. However, McBride involved a settlement
mid-trial whereas the instant case involved a pre-trial settlement. See id. at 375. Further, McBride itself
states that "[t]his opinion is limited, however, to cases in which, as here, the trial court instructed the jury to
consider only the relative culpabilities of the plaintiff and the non-settling defendant(s) in apportioning fault
under comparative negligence principles." See id. at 380. Hence, McBride is inapplicable here. This is
neither a case of settlement during trial nor, as aforementioned, a case of comparative negligence.
Nonetheless, there is language in McBride from which this Court should find directive. We stated that if
there was any alleged windfall, the plaintiff deserved the damages in light of "the view of this Court that a
defendant whose negligence has been found to have proximately caused injury to another person should not
be allowed to escape liability for his negligence by the fortuity that a co-defendant has settled prior to trial."
See McBride, 673 So. 2d at 380. In an effort to promote judicial economy, we strive to encourage
settlements. The recalcitrant defendant who chooses not to settle, should suffer upon disposition of the case.
Given McBride's language regarding windfalls, it is obvious the settlement-first should not have been
applied here when one considers McBride in light of Ford Motor Co. v. Matthews, 291 So. 2d 169(Miss. 1974). In Matthews, another products liability case, we granted the plaintiff the damages assessed
by the trial court without touching the settlement. The plaintiff received all of the money at issue-both the
settlement amount and the trial court's award. See id. at 170-71 & 177. Further, as explained above, we
specifically limited McBride settlement-first to cases involving culpability. See McBride, 673 So. 2d at
380-81. This is not a case of culpability. This is a case of strict liability. It is obvious that the law of damages
requires we allow the plaintiff to fully recover as per Matthews. I dissent.
SULLIVAN, P.J., JOINS THIS OPINION IN PART.
1. The Fifth Circuit in Krieser noted that this Court explicitly reserved judgment on this issue in Estate of
Hunter v. GMC, 96-CA-01278-SCT, 1999 WL 12908 (Jan. 14, 1999).
2. Bell and Lippard have been superseded by statute.