Malczewski v. McReynolds Const. Co.

• Decision Date: 09 April 1981
• Docket Number: No. 4813,4813
• Parties: John MALCZEWSKI, Plaintiff-Appellee, v. McREYNOLDS CONSTRUCTION COMPANY, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 285

630 P.2d 285

96 N.M. 333

John MALCZEWSKI, Plaintiff-Appellee, v. McREYNOLDS CONSTRUCTION COMPANY, Defendant-Appellant.

No. 4813.

Court of Appeals of New Mexico.

April 9, 1981.

Walter J. Melendres, Montgomery & Andrews, P.A., Santa Fe, for defendant-appellant

Solomon, Roth & VanAmberg, Santa Fe, for plaintiff-appellee.

OPINION

SUTIN, Judge.

Due to the negligence of the operator of defendant's truck, plaintiff jumped off the Pojoaque bridge, landed in the sandy river bed below, and suffered extensive injuries. The jury awarded plaintiff $360,000.00 and defendant appeals from the judgment entered. We affirm.

The issues raised in this appeal relate to the award of damages. We will discuss each of the points seriatim.

A. The trial court properly allowed Dr. Dillman, an economist, to testify as an expert on vocational evaluation and prognostication.

In Torres v. Sierra, 89 N.M. 441, 445, 553 P.2d 721 (Ct.App.1976) we said:

Dr. Everett G. Dillman, an economic statistician, testified on behalf of plaintiff on the subject of damages. He is recognized as a competent witness whose qualifications are unimpeachable. (Citation omitted.)

See also, Wilson v. Wylie, 86 N.M. 9, 518 P.2d 1213 (Ct.App.1973) in which Dr. Dillman testified as to the pecuniary value of decedent's earning capacity.

Defendant claims that the trial court erroneously allowed Dr. Everett G. Dillman, a noted economist, to testify as a vocational "rehabilitation" expert. Defendant has not defined the word "rehabilitation" nor pointed to any Dillman testimony related to that subject matter.

When Dr. Dillman was offered as an expert in making evaluations about impaired lost earning capacity and related matters therein, defendant had no objection to these qualifications. Defendant wanted to make it clear that Dr. Dillman was not holding himself out as a vocational or rehabilitation expert. On voir dire of Dr. Dillman by defendant, Dr. Dillman was asked this question to which he made this answer Q. You are not holding yourself out as an expert, as a vocational or rehabilitation expert? (Emphasis added.)

A. That is not true. I have an expertise in personnel and vocational evaluation and vocational prognostication.

"Vocational Rehabilitation Services" is provided for in § 52-1-50, N.M.S.A.1978 of the Workmen's Compensation Act. "Vocational rehabilitation arises after such partial disability has occurred that a workman is unable to return to his former job, yet he desires to retrain himself for suitable employment. * * * He wants to better himself by vocational rehabilitation." (Emphasis added.) Ruiz v. City of Albuquerque, 91 N.M. 526, 530-31, 577 P.2d 424 (Ct.App.1978). See Lane v. Levi Strauss & Co., 92 N.M. 504, 590 P.2d 652 (Ct.App.1979). It is "a means for retraining an injured employee in an effort to direct his limited physical capability into other useful channels of productivity." (Emphasis added.) Bender v. Deflon Anderson Corporation, 298 A.2d 346, 348 (Del.Super.1972).

Vocational rehabilitation involves methods to be used in retraining an injured person. Dr. Dillman did not testify in this field of activity.

First, defendant argues that the trial court allowed the jury to decide the preliminary question of Dr. Dillman's qualifications. Defendant is mistaken.

Whether a witness is shown to be qualified as an expert is a preliminary question for the court to decide. Reid v. Brown, 56 N.M. 65, 240 P.2d 213 (1952); Apodaca v. Baca, 73 N.M. 104, 385 P.2d 963 (1963). "The court has wide discretion in determining whether one offered as an expert witness is competent and qualified." Jaramillo v. Anaconda Co., 71 N.M. 161, 164, 376 P.2d 954 (1962).

Defendant objected to Dr. Dillman's qualifications on the ground that Dr. Dillman "is not or has not been trained as a vocational expert in rehabilitation." The court said:

I will (let) the jury decide that particular fact issue. The witness will be deemed qualified to express opinions before this Court concerning the evaluation of impaired or lost earning capacity and related matters. (Emphasis added.)

The court determined that Dr. Dillman was "qualified." Defendant places emphasis upon the first sentence that, on rehabilitation, the jury will be allowed to decide "that particular issue." This issue was not submitted to the jury to decide. A jury cannot decide whether Dillman was or was not a vocational rehabilitation expert unless the jury is instructed on the issue or special interrogatories are submitted. The statement made by the court was an inadvertent expression. The trial court, not the jury, determined Dr. Dillman's qualifications

Second, defendant claims that the court erred in allowing Dr. Dillman to testify as an expert in vocational rehabilitation because he was not qualified. Third, defendant claims the court's error regarding this "expert" witness was prejudicial to defendant. Inasmuch as Dr. Dillman did not testify as an expert in vocational rehabilitation, these points are without merit.

Perhaps, Dr. Dillman's testimony in some vague way, or by inferences drawn, may have approached the subject of rehabilitation. Even if it did, his testimony was admissible. We do not know where "vocational evaluation and vocational prognostication" ends and "vocational rehabilitation" begins. No objection was made to the admission in evidence of any testimony of Dr. Dillman before, during or after his examination, cross-examination or redirect examination. "Failure to object to the admission of evidence constitutes a waiver of objection, and in such case the objection cannot be raised for the first time on appeal." McCauley v. Ray, 80 N.M. 171, 176, 453 P.2d 192 (1968). Even though the testimony should have been excluded, it is not considered to be erroneous where no proper objection is made. Ash v. H. G. Reiter Company, 78 N.M. 194, 429 P.2d 653 (1967). Justice and fairness require that the trial court be alerted by proper objections to the admission of evidence, and the specific reasons therefor, so that the court can pass upon the objections advisedly and intelligently. Alvarado M. & M. Co. v. Warnock, 25 N.M. 694, 187 P. 542 (1919). It has been said, however, that "(I)t cannot be expected that every objection must state with particularity each and every element involved." Hanberry v. Fitzgerald, 72 N.M. 383, 391, 384 P.2d 256 (1963). Nevertheless, we do not believe that objections to Dr. Dillman's testimony would have assisted defendant in this appeal. We hold that the trial court did not abuse its discretion in determining that Dr. Dillman was qualified to testify as an expert witness, and in allowing his testimony on vocational evaluation and prognostication. In any event his testimony was admissible because no objection was tendered as to its admissibility.

B. Refusal of defendant's requested instruction of impaired earning capacity was not erroneous.

Defendant claims that the trial court erred in refusing to give its requested non-UJI Instruction No. 36. It reads:

The measure of damages for impairment of earning capacity is the difference between the amount which the plaintiff was capable of earning before his injury and that which he is capable of earning thereafter. As bearing on this question, it is proper to take into account not only the plaintiff's occupation at the time of the injury but also other occupations which he may pursue after injury.

The court instructed the jury in accordance with UJI 14.7. It reads:

The value of earnings lost and the present cash value of the earning capacity reasonably certain to be lost in the future.

Also given without objection was UJI 14.22. It reads:

If you have found that plaintiff is entitled to damages arising in the future, you must determine the amount of damages.

If these damages are of a continuing nature, you may consider how long they will continue. If they are permanent in nature you may consider how long plaintiff is likely to live.

As to loss of future earning ability, you may consider that some persons work all of their lives and others do not; that a person's earnings may remain the same or may increase or decrease in the future.

Our appellate courts have not yet discussed the issue of when UJI instructions on future damages should be used instead of non-UJI instructions. We do know that " * * * the UJI shall be used unless under the facts or circumstances of the particular case the published UJI is erroneous or otherwise improper, and the trial court so finds and states of record its reason." Rule 51(D) of the Rules of Civil Procedure.

Defendant argues that its requested instruction "was crucial" and should have been given.

Rule 51(D) alerts lawyers and district judges to the fact that the submission of non-UJI instructions to the jury can result in reversible error unless compliance therewith has occurred. See, Williams v. Cobb, 90 N.M. 638, 645, 567 P.2d 487 (Ct.App.1977), Sutin, J., specially concurring. Attorneys are allowed to request non-UJI instructions or modifications thereof, "where no applicable instruction on the subject matter is available." (Emphasis added.) Mac Tyres, Inc. v. Vigil, 92 N.M. 446, 449, 589 P.2d 1037 (1979). UJI 14.7 was available and covered the subject matter on that phase of damages.

The fact that defendant's requested instruction was "crucial" did not prejudice defendant. It was ably presented to the jury in final argument and adequately explained.

Oral argument was a substitute for the non-UJI instruction. The purpose for which UJI was introduced in New Mexico was to lessen, not increase, the use of instructions.

Refusal to give defendant's Requested Instruction No. 36 was proper. It was not erroneous.

C. The judgment was not excessive.

We are not impressed with defendant's argument concerning the amount of the award as being excessive. If we believed the amount awarded were shocking, we would set forth all facts relevant to the issue of damages. This is...