Cantrell v. Henthorn , 624 P.2d 1056 ( 1981 )

BARNES, Vice Chief Justice:

We are asked today to determine whether instructions given in a personal injury action arising out of a rear-end collision were adequate to apprise the jury members of their duty under the law, and the correct state of the law in this jurisdiction.

At trial, the parties stipulated that the negligence of the defendant below was the sole cause of the rear-end collision. Thus, the only issues presented to the jury were issues involving damages. At trial, both litigants presented evidence of the physical injuries of the plaintiff below, and of loss of past and future earnings. Conflicting evidence of the existence of pre-existing condition and its aggravation by the rear-end collision was also presented. At the conclusion of the jury trial, a verdict was returned for the plaintiff below in the amount of $1,500.00, which the plaintiff below contends was inadequate because of improper instructions given to the jury. Plaintiff below filed a motion for new trial, and the trial court denied that motion. He appeals from the trial court’s refusal to grant his motion for new trial.

I.

The first issue presented on appeal is whether the plaintiff below properly preserved his objections to the trial court’s refusal to give certain instructions requested by him. The procedure to be used in preserving objections to instructions is set forth at 12 O.S.1971 § 578, which provides:

“A party excepting to the giving of instructions, or the refusal thereof, shall not be required to file a formal bill of exceptions; but it shall be sufficient to make objection thereto by dictating into the record in open court, out of the hearing of the jury, after the reading of all instructions, the number of the particular instruction that was requested, refused and is excepted to, or the number of the particular instruction given by the court that is excepted to. Provided, further, that the court shall furnish copies of the instructions to the plaintiff and defendant prior to the time said instructions are given by the court.”

In the case before us, a reading of the record in its entirety shows that plaintiff’s counsel requested two instructions on aggravation of pre-existing injury — Requested Instructions No. 6 and No. 7. The record further shows that the trial court refused these instructions, and that the trial court understood plaintiff’s counsel was objecting to his refusal, though plaintiff’s counsel did not specifically dictate his objection into the record. This Court has previously stated that the “purpose of requiring objections to instructions before reading them to the jury is to inform the court of any defect or irregularity in order that the court may be informed and correct any error.”¹ Plaintiff’s counsel clearly provided the trial court with an opportunity to correct any errors in the instructions, by providing requested instructions. While plaintiff’s counsel did not follow the letter of the law in making his objections, the spirit of the law was complied with. Appellee urges this Court to deny Appellant’s preservation of his objections to the refused instructions because of a technicality in procedure. We refuse to do so. Although numerous Oklahoma cases, cited by Appellee, state that the statutory requirements for preserving objections for appeal are mandatory,² a review of those cases show that nothing in their records indicated that any objection was taken by the parties. The case before us is clearly distinguishable from those cases, because plaintiff’s attorney in the instant case took adequate steps to apprise the court of his objections, giving the court ample opportunity to correct any mistakes in its instructions.

For the above stated reasons, we hold that Appellant’s objections to the trial court’s refusal to give his Requested Instructions No. 6 and No. 7 were properly preserved for appeal.

II.

Having determined that plaintiff’s objections to the trial court’s refusal to give his Requested Instructions No. 6 and No. 7 were preserved, we now determine whether such refusal constituted reversible error. The instructions requested by the plaintiff read as follows:

“PLAINTIFF’S REQUESTED INSTRUCTION NO. 6

“You are instructed if you find under a preponderance of the evidence under these instructions in favor of the plaintiff Kenneth Cantrell, then plaintiff is entitled to his damages, even if a pre-existing condition of the plaintiff has more readily pre-disposed him to injury even though the acts of the defendant would have not caused such injury to a person who did not have the pre-existing condition such as the plaintiff had.

“PLAINTIFF’S REQUESTED INSTRUCTION NO. 7

“Where a pre-existing condition exists which has been aggravated by the accident, it is your duty, if possible, to apportion the amount of disability and pain between that caused by the pre-existing condition and that caused by the accident. The burden of proof on this issue is upon the defendant to establish that portion of plaintiff’s present condition for which the defendants are not responsible, and if you find that the evidence does not permit such an apportionment, then the defendants are liable for the entire disability.”

Although the trial court refused to give these requested instructions, it did instruct on aggravation of pre-existing conditions. In its Instruction No. 3, the trial court stated to the jury:

“You are instructed that the defendant has admitted liability in this action or in other words that he was the sole cause of the accident and you are not to consider this issue in your deliberations.

“You are further advised that the only question for you to consider is the question of damages, if any, to the plaintiff arising out of said accident which occurred on or about the 6th day of January, 1977.

“In this connection you are instructed that the burden of proof is upon the plaintiff to establish by a preponderance of the evidence the material allegations of the petition; pain and suffering, medical expenses, loss of earnings; earning capacity reduced, aggravation of a preexisting condition; property damages, and unless the plaintiff has proved these allegations by a preponderance of the evidence, your verdict must be for the defendant.

“By a ‘preponderance of the evidence’ as the term is used in these instructions, is not necessarily meant the greater number of witnesses testifying to a fact or state of facts, but means that evidence which to your mind is most convincing and seems most probably true.” [Emphasis added]

In its Instruction No. 6, the trial court further instructed the jury:

“Should you find from a preponderance of the evidence, under these instructions, in favor of the plaintiff, then you may assess the amount of recovery for such damages, if any, which you find from a preponderance of the evidence were sustained by plaintiff as a direct and proximate result of the accident, and which must not be oppressive or unconscionable, but which you find will fairly and reasonably compensate plaintiff insofar as the same may be computed in money. In this regard you may take into consideration the age of the plaintiff, the physical condition of the plaintiff immediately before and after the accident; the nature and extent of his injuries, if any; whether the injuries, if any, are permanent or otherwise; the physical impairment sustained, if any; the pain and suffering endured and likely to be endured in the future, if any; medical expenses incurred, and likely to be incurred in the future, if any; loss of earnings, if any; earning capacity reduced, if any; aggravation of a pre-ex-isting condition, if any; property damage sustained, if any; and award such sum as you determine will reasonably compensate plaintiff therefor, not to exceed, in any event, the amount sued for.” [Emphasis added]

We find that the court’s Instructions No. 3 and No. 6 were adequate to apprise the jury that aggravation of a pre-existing condition could be considered, and damages could be awarded on the basis of such aggravation. Additionally, we find that the jury was adequately instructed that it was only to award damages for injuries arising out of the accident, and not for injuries which predated the accident. In so holding, we specifically note that in Instruction No. 3 the jury was instructed that the only question for it to consider was whether damages to plaintiff arose out of the automobile collision. Additionally, we note that in its Instruction No. 6 the trial court specifically instructed the jury that it may take into consideration the physical condition of the plaintiff immediately before and after the accident. This, together with the trial court’s instruction to the jury that it was to take into consideration aggravation of pre-existing conditions, if any, was sufficient to apprise the jury of the issues raised in the cause. Accordingly, we hold that it was not error for the trial court to refuse to give plaintiff’s Requested Instructions No. 6 and No. 7. For these reasons, we affirm the action of the trial court and the verdict of the jury.

Lastly, we note that a motion to dismiss this appeal was filed by Appellant on February 3rd of this year. That motion is denied.

AFFIRMED.

IRWIN, C. J., and WILLIAMS, HODGES, SIMMS, HARGRAVE and OPALA, JJ., concur. LAVENDER and DOOLIN, JJ., concur in part and dissent in part.

1 . McKee v. Neilson, 444 P.2d 194 (Okl.1968).

2 . Huff v. Duncan, 530 P.2d 134 (Okl.App.1974); Basden v. Milis, 472 P.2d 889 (Okl.1970); and Local Federal Sav. & Loan Ass’n of Oklahoma City v. Sickles, 196 Okl. 395, 165 P.2d 328 (1945).