Weaver v. Mitchell

• Decision Date: 18 March 1986
• Docket Number: 84-195,Nos. 84-194,s. 84-194
• Citation: 715 P.2d 1361
• Parties: Virgil R. WEAVER, Neiman Sawmills, Inc. and James S. Neiman, Appellants (Defendants), v. Preston MITCHELL and Marilynn Mitchell, husband and wife, Appellees (Plaintiffs). Preston MITCHELL and Marilynn Mitchell, husband and wife, Appellants (Plaintiffs), v. Virgil R. WEAVER, Neiman Sawmills, Inc. and James S. Neiman, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 1361

715 P.2d 1361

Virgil R. WEAVER, Neiman Sawmills, Inc. and James S. Neiman, Appellants (Defendants), v. Preston MITCHELL and Marilynn Mitchell, husband and wife, Appellees (Plaintiffs).

Preston MITCHELL and Marilynn Mitchell, husband and wife, Appellants (Plaintiffs), v. Virgil R. WEAVER, Neiman Sawmills, Inc. and James S. Neiman, Appellees (Defendants).

Nos. 84-194, 84-195.

Supreme Court of Wyoming.

March 18, 1986 ^*.

Tom C. Toner, Sheridan, and David F. Palmerlee, Buffalo, for appellants in case No. 84-194 and appellees in case No. 84-195.

R. Douglas Dumbrill of Hughes & Dumbrill, Sundance, for appellants in case No. 84-195 and appellees in case No. 84-194.

Before THOMAS, C.J., and BROWN, CARDINE, ROSE (Retired) and ROONEY (Retired), JJ.

BROWN, Justice.

Preston Mitchell suffered personal injuries when struck by a protruding log which had been dislodged from a load of logs being hauled by Virgil R. Weaver. A jury by general verdict awarded Mitchell an amount that apparently covered loss of earnings, pain and suffering, and medical expenses. He was also awarded punitive damages and costs. Marilynn Mitchell, wife of Preston Mitchell, received an award for loss of consortium.

We will affirm in part and reverse in part, and remand the case to the trial court for further proceedings.

In case No. 84-194, we have reworded and simplified the issues raised by appellants Virgil R. Weaver, Neiman Sawmills, Inc., and James S. Neiman as follows:

I

Was the jury adequately instructed on

1) Defendant's theory of standards of care, and

2) duty to mitigate damages.

II

Was the foundation for an economist's testimony sufficient?

III

Was the foundation for medical expenses sufficient?

IV

Was it reversible error to refuse to instruct the jury to reduce damages awarded for loss of future earnings to present value?

V

Is a wife entitled to recover for loss of consortium, and, if so, should her recovery for loss of consortium be reduced by the percentage of fault attributed to the husband?

VI

Was the award for punitive damages proper?

VII

Were the costs awarded appellees proper?

In case No. 84-195 Preston and Marilynn Mitchell cross appeal and raise a single issue as follows:

"Should the district court restrict Preston and Marilynn Mitchell's recovery of costs to amounts, which by design, undercompensate them for legitimate expenses of litigation?"

Preston Mitchell was employed by Preston Mitchell Logging Company, as a log skidder. ¹ On June 29, 1982, Mr. Mitchell parked his pickup truck on a narrow, single-lane dirt and gravel road, not pulling entirely off the road. He crossed the road to talk to three log skidders employed by another sawmill. After visiting with the three men, Mitchell returned to his pickup and climbed in the back to get a tool from the toolbox. At this time a logging truck driven by Virgil Weaver was coming down the road toward Mitchell's parked vehicle. The Weaver truck was hauling logs between twelve and forty-five feet long. The logs were secured by a single cable overbind, wrapped around the logs about eight feet from the front of the load. One of the logs on top of the load had become displaced. The front of the log was held in the cable overbind while the other end of the log had swung out at an angle to the right side of the log truck. Mitchell's parked vehicle was in the path of the dislodged log. People in the area saw that the protruding log on the Weaver truck was on a collision course with Mitchell, who was standing in the back of his pickup. These people tried to warn Weaver by shouting and waving their arms. Weaver thought they were greeting him and waved back. As Weaver drove past Mitchell's vehicle, the protruding log struck Mitchell, causing the injury giving rise to this lawsuit. It was then that Weaver saw the protruding log in his right-hand mirror for the first time.

Neiman Sawmills, Inc., is Weaver's employer, and James S. Neiman is President of Neiman Sawmills, Inc. Preston Mitchell filed an action against Virgil R. Weaver, Neiman Sawmills, Inc., and James S. Neiman, asking for special, general and punitive damages. Marilynn Mitchell's claim was for loss of consortium.

The case was tried to a jury the last week in May, 1984. The jury returned a general verdict in favor of Preston and Marilynn Mitchell and apportioned fault as follows: Forty percent to Virgil R. Weaver, fifty percent to James S. Neiman and ten percent to Preston Mitchell. The jury found damages to be: Preston Mitchell, $151,840 and Marilynn Mitchell, $37,960. Punitive damages were also assessed against Virgil R. Weaver in the sum of $50 and against James S. Neiman for $75,000.

I

Appellants complain that the trial court refused to give two special instructions regarding parked vehicles. The essence of one proposed instruction was that a proper lookout for approaching vehicles should be maintained, while the second instruction stated that those who park vehicles should take measures to prevent collisions. The court's Instruction No. 2 succinctly states the basis of appellees' claim for damages and appellants' theory of defense. Instruction No. 4 is a neutral instruction in that it is applicable to the drivers and operators of both vehicles involved in this case. This instruction generally instructs on the duties of drivers and operators and specifically imposes a duty to keep a proper lookout. Instruction No. 5 specifically addresses improperly parked vehicles.

The trial court is not obligated to give instructions in the language of their proponent and may refuse proposed instructions, though correct, if the principles embodied in the requested instructions are covered by other instructions. Britton v. State, Wyo., 643 P.2d 935 (1982). The instructions given by the court adequately covered the duty to keep a proper lookout and the duty with respect to parked vehicles. In apportioning fault the jury attributed ten percent to Preston Mitchell. The jury apparently understood appellants' theory of defense, and also found some fault with Mitchell's parking and/or his lookout.

Appellants contend that it was error for the court to refuse a mitigation of damages instruction. Ordinarily, the burden of proving that damages could be mitigated is cast on the party who is at fault or who commits the wrong. ² Truck Terminal, Inc. v. Nielsen, 80 Wyo. 223, 339 P.2d 413 (1959). See also, 25A C.J.S. Damages § 144(e), p. 21 (1966).

During the time appellants claim Preston Mitchell could have worked to mitigate damages, he was engaged substantially full-time in a rigorous physical therapy program to strengthen his injured leg. There was medical testimony that the exercise program was required by a doctor and was beneficial to him. This resulted in reducing damages for which appellants might otherwise have been liable. Mitchell progressively gained strength and endurance as a result of the rehabilitation program. From this appellants infer that Mitchell could have, and should have, become gainfully employed in order to minimize damages. This inference is not sufficient to overcome the direct testimony that the exercise program was required by the doctor, and that the program was substantially full-time and was, in fact, successful.

Mitchell's ability to work was only inferred, and there was no evidence that there was opportunity for him to obtain employment or that he unreasonably refused employment. Appellants failed to meet their burden of proving that Mitchell could have mitigated damages.

Appellants attempted to offer evidence that Mitchell was receiving worker's compensation benefits. Apparently, they were aware of the rule that worker's compensation benefits are not considered in mitigation of damages. 22 Am.Jur.2d Damages § 209, p. 292 (1965). Appellants contended at trial that they were not proposing this evidence for the purpose of reducing damages but to show that Mitchell had a motive for not returning to work. The trial court apparently thought this theory of admitting evidence of worker's compensation benefits received to be subterfuge and would not admit it. We agree with the trial court.

The trial court was correct in its determination that there was no evidence of Mitchell's failure to mitigate damages, and therefore, an instruction on mitigation was not proper.

II

Dr. James A. Evenson, an economist-lawyer, testified in support of Preston Mitchell's claim for economic loss. Appellants contend that the trial court erred in admitting economic testimony and charts prepared by Dr. Evenson based on assumptions of disability. They also contend that these assumptions were contrary to medical testimony, were based on wage growth assumptions unrelated to Preston Mitchell's occupation, and furthermore, were unrelated to wage earners in Wyoming.

The trial court, relying on Rules 702 and 703, Wyoming Rules of Evidence, permitted the economist to testify as an expert on economic loss. These rules provide:

"Rule 702. Testimony by experts.

"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

"Rule 703. Basis of opinion testimony by experts.

"The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence."

Appellants complain that exhibits demonstrating economic loss were admitted without foundation and were speculative. They also complain that the exhibits and the economist's testimony reflect a national wage growth rate rather than a local growth rate. A further complaint is that appellan...