Jacqueline JAKOSKI and Carl Jakoski, Appellants, v. H. Russel HOLLAND, Appellee. H. Russel HOLLAND, Cross-Appellant, v. Jacqueline JAKOSKI and Carl Jakoski, Cross-Appellees.
Nos. 1724 and 1795.
Supreme Court of Alaska.
March 11, 1974.
Charles Hagans, Sanford M. Gibbs, Hagans, Smith & Brown, Anchorage, for H. Russel Holland, appellee and cross-appellant.
Before RABINOWITZ, Chief Justice, and CONNOR and BOOCHEVER, Justices.
OPINION
BOOCHEVER, Justice.
Jacqueline and Carl Jakoski appeal from the August 9, 1972 final judgment in the superior court, pursuant to a jury award to them of $18,000 in their action against H. Russel Holland. The main appeal raises two evidentiary questions—whether the trial judge erroneously excluded relevant evidence and admitted irrelevant, prejudicial, evidence—and challenges the award as being contrary to the weight of the evidence. The cross-appeal initiated by defendant Holland raises the question of whether Mr. Jakoski‘s loss of consortium claim was barred by the running of the statute of limitations and challenges the awards of plaintiffs’ and defendant‘s attorneys’ fees.
On November 13, 1968 at about 8:15 a. m., Jacqueline Jakoski was proceeding north on the Seward Highway near its intersection with Lewis Lane on the outskirts of Anchorage in her 1963 Mercedes sedan. There she stopped her vehicle to avoid colliding with a possibly-disabled car which had itself stopped in her lane. H. Russel Holland was also proceeding north on the Seward Highway some distance behind Mrs. Jakoski. He first noticed the stationary Jakoski vehicle when approximately 100 feet from it. He immediately applied the brakes and skidded approximately 27 paces (in the estimate of the state trooper who investigated the accident) before colliding with the rear end of the Jakoski Mercedes.
On September 11, 1970, Mrs. Jakoski filed a complaint charging Holland with negligence. On November 12, 1971, a pre-trial conference was held. Pursuant to the pre-trial order on November 18, 1971 (3 years and 5 days after the date of the accident), Mrs. Jakoski filed an amended complaint adding a claim by her husband Carl Jakoski for loss of consortium. This added claim was based on the same facts as Mrs. Jakoski‘s personal injury claim.
On January 24, 1972, Holland filed an offer of judgment pursuant to
Trial commenced on March 28, 1972. Mrs. Jakoski attempted to demonstrate that the accident had caused cervical nerve root damage, severe chronic headaches and resulting mental and physical impairment. In the course of plaintiffs’ case, their counsel sought to introduce testimony of certain lay witnesses, fellow employees of Mrs. Jakoski both before and after the 1968 accident, to show that in their opinions she was unemployable after the accident because she was suffering great pain from headaches. The court sustained defense objections and ruled that the lay witnesses must confine their testimony to their observations and would not be allowed to relate their opinions as to whether she was able to work.
During cross-examination of Mrs. Jakoski, defense counsel sought to question her about her son‘s having been indicted in April 1968 for the felony of assault with a dangerous weapon. Over objection of plaintiffs’ counsel, the court allowed the questioning. Mr. Jakoski, subject to the same objection, was also questioned regarding the criminal proceedings against his son.
In summation to the jury, plaintiffs’ counsel called for a verdict of $545,000. Defense counsel, by contrast, suggested that if the jury believed Holland liable, they should return a verdict of $15,000 for Mrs. Jakoski and $2,000 for Mr. Jakoski. The jury returned its verdict on April 10, 1972, awarding Mrs. Jakoski $16,000 and Mr. Jakoski $2,000 on his consortium claim.
From the judgment entered pursuant to the jury verdict, the Jakoskis’ appeal and Holland cross-appeals.
I
EXCLUSION OF LAY TESTIMONY
Briefly recapitulating, the court allowed Mrs. Jakoski‘s co-workers, Carol Sturgeon and Ann Reid, to relate their observations but upheld objections to their expressing an opinion on her ability to work. The Jakoskis argue that the prevailing authority favors receiving lay opinion in such circumstances, citing 32 C.J.S. Evidence § 546(23) at 164-165:
Such an observer may also infer and state that a person‘s ability to help himself or to work has or has not been impaired; that he continued his usual work in the customary manner; that after the injury he tried to do all the work he could; and that certain work exhausted a diseased person and required nearly all the strength he had, as bearing on the physical condition of another. The witness may also state the inability of such person to follow an occupation because of his condition and whether there has or has not been an impairment of his faculties, or the use of his limbs or other parts of his body, or his earning capacity (footnotes omitted).
In Houger v. Houger, 449 P.2d 766 (Alaska 1969)1 we addressed a nearly identical issue. Houger was a divorce case, which raised, inter alia, the question of the fairness of a child support decree. The trial court had modified the decree on the ground that a recent automobile accident had rendered the father medically unfit to work. Faced with the subsidiary question of whether the father‘s father and brother, who were his fellow workers, were competent to testify that since the accident he was incapable of working in their business as a floor finisher or carpenter, we held that they were, stating:
If a question of the nature or character of appellee‘s injuries were involved,
some special skill would be needed, and expert testimony by someone qualified in medical science would be required. But as Professor Wigmore points out, there are numerous related matters involving health and bodily soundness, not exclusively with the domain of medical science, upon which the ordinary experience of everyday life is entirely sufficient. One of such matters is a man‘s capacity or lack of it to perform certain types of work as it relates to an injury he has received. On this subject there is probably no one better informed than the injured man himself, or his associates who observe his efforts to perform such work.2
We agree with the appellants that Houger is dispositive, and that the lower court erred in excluding the proffered opinion testimony of Mrs. Jakoski‘s co-workers, Sturgeon and Reid. Their testimony, as far as we can perceive from the record before us, would not have included technical assessments of the nature or character of Mrs. Jakoski‘s injuries. Rather, these witnesses would have testified only that in their opinion, appellant was experiencing such pain in the days immediately following the accident that she was unable to work at all. We think that there are only two foundational prerequisites to the admission of lay opinion testimony concerning the effect of an injury upon an individual‘s capacity to perform certain types of work. The proponent must establish (1) that the witness had sufficient opportunity to observe the victim in pain or otherwise exhibiting inability to perform the task and (2) that the witness was knowledgeable concerning the demands of the victim‘s employment at the time of his observation.3 Mrs. Jakoski‘s co-workers satisfy this test; but we do not limit the application of the test to co-workers. Under proper circumstances, teachers, teammates and even competitors, to name a few, may qualify.
In reaching our conclusion on this issue we have given careful consideration to the purpose for which appellants sought to introduce the excluded testimony. The record indicates that Mrs. Jakoski resigned from her position with the Rural Community Action Program within a month of the November 13, 1968 accident. Sturgeon and Reid had only a brief period after the accident in which to observe Mrs. Jakoski at work. They would, therefore, have been incompetent to testify as to the long-range effects of the injuries on her ability to perform her job, and it would not have been error for the court to have excluded their testimony had this been the purpose for which appellants sought to introduce it. Appellants, however, sought to use the Sturgeon and Reid testimony only as evidence going to Mrs. Jakoski‘s ability to perform her work immediately after the accident. We think it was perfectly proper to introduce their testimony for such a limited purpose.
We hold, however, that the Jakoskis were not prejudiced by the exclusion of the testimony. The proffered testimony applied only to the period immediately after the accident; Holland did not challenge the inability of Mrs. Jakoski to work in that period, but attributed it to factors other than the accident.
Moreover, the specific opinion testimony was obtained from her supervisor Thomas Echols:
Q Now, did you form an opinion as to whether or not, based on your observation of her, that she was capable then of doing her work?
THE COURT: You‘re talking now about before or after?
Q Following the accident.
A No, as I repeated—as I told you a couple of times, I came to the conclusion she was not capable of performing.
The witnesses Sturgeon and Reid also either expressed an opinion or gave substantially similar testimony to the effect that Mrs. Jakoski was unable to perform her job in the month following the accident. Mrs. Sturgeon stated: “[W]ell, Mrs. Jakoski would try to come in and work but she couldn‘t because she was in pain and she was going to the doctor for treatment . . . .” and “she would come into the office to work and couldn‘t because she—you could tell she was in pain and hurting.” She further testified:
Q How would you describe the effect of those headaches upon her before the accident? Did they effect her before the accident and if so, what did you observe about that?
A Well, she was able to work and the—after the accident she definitely wasn‘t able to work.
Mrs. Reid testified pertaining to Mrs. Jakoski‘s work after the accident:
[Y]ou‘d give her something to do, she‘d start it but she couldn‘t complete it, I mean she‘d set there, shake, our office was one huge mass of machinery, constant noise, and you‘d look at her and she‘d be off in a daze . . . .
The court then struck the additional portion of Mrs. Reid‘s testimony stating: “in my opinion, she wasn‘t able to work.”
No error in either the admission or the exclusion of evidence . . . is ground for . . . setting aside a verdict . . . unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
Here Holland never contended that Mrs. Jakoski was capable of working in the period immediately after the accident, and substantial lay testimony was given to the effect that she was unable to work. The proffered testimony was cumulative at best, and we have previously held that error in excluding such matter is harmless.4 We hold that in this case the error in failing to permit the addition of opinion testimony by the witnesses Sturgeon and Reid was harmless.
II
ADMISSION OF TESTIMONY CONCERNING INDICTMENT OF MRS. JAKOSKI‘S SON
Judge Davis permitted defense counsel, over objection by plaintiffs’ counsel, to question Mrs. Jakoski about her 19-year-old son‘s having been indicted in April 1968 on two counts of assault with a dangerous weapon. The Jakoskis argue that the mere introduction of such evidence is a patently prejudicial, indirect and irrelevant attack on Mrs. Jakoski‘s integrity. They concede that, prejudicial impact notwithstanding, the evidence would be admissible if it contained sufficiently great counterbalancing probative value. But because Holland had not adduced medical evidence relating Mrs. Jakoski‘s condition to the indictment of her son, the Jakoskis contend that the evidence has no probative value whatever to counter its prejudicial impact.
They support their position by citing Smith v. German.5 Plaintiff Smith alleged that he suffered a severe personality change as a result of injuries sustained in a 1962 automobile accident. Defendant
“Where there is no obvious causal relationship [between the event demonstrated and the result sought to be proved], unequivocal medical testimony is necessary to establish the causal connection.”6
Only where the event and the result are “so closely connected and so readily apparent” that a layman could diagnose (except by guessing) the causal connection may expert testimony be dispensed with.7
Returning to the instant case, the Jakoskis argue that the admission of questions concerning the son‘s indictment encouraged the jury to speculate on its effect. They argue that, absent expert testimony establishing a causal connection, such speculation is clearly improper, because the connection is not so readily apparent that a layman could diagnose it.
We are not persuaded. Placing the challenged line of questioning into somewhat fuller perspective, we note that plaintiffs’ counsel told the jury in his opening statement that prior to the accident the Jakoskis had led a normal, happy home life but that one of the sons had “been troublesome.” Several of the witnesses corroborated the Jakoskis’ happy home life, but none apparently knew of the troublesome son. Most importantly, in her direct testimony, Mrs. Jakoski discussed her home and family life and her children.
Turning to the issue of probative value, we are satisfied that the indictment of her 19-year-old son and his subsequent trial in July 1968 bore directly on the central question of whether the November accident or other events caused her headaches and accompanying mental and physical disabilities. The crux of our inquiry then is whether the defense should have been required to adduce expert testimony to establish a causal connection. We think that such testimony was not required. This is not to say that we completely reject the test set forth by the Pennsylvania Supreme Court in Smith and Florig. Rather, we think that the Pennsylvania Supreme Court applied its test too rigorously and in so doing needlessly excluded relevant testimony.
The probative value of the son‘s criminal prosecution is merely a variation on the theme which has already been treated in this appeal: when does ordinary experience suffice as a basis for a witness‘s testimony concerning medically-related matters?8 Wigmore argues that, “Great
III
VERDICT CONTRARY TO WEIGHT OF THE EVIDENCE
The Jakoskis contend that the total award of $18,000 was inadequate and contrary to the weight of the evidence. We note initially that no objection to the amount of the award was made before the trial judge. There was no motion for new trial or for an addition to the award. We have held in Heacock v. Town:11
The question of whether damages are inadequate, or excessive, is in the first instance committed to the discretion of the trial judge and should be raised on a motion for a new trial. The reason for this is that the judge who presided at the trial and observed all the events that occurred there, and who heard the witnesses and observed their demeanor, is in a far better position than an appellate court to know whether in the light of all that transpired at the trial the damages awarded by the jury were so wholly inconsistent with, or so much less than the proof of damages as reflected by the evidence as to be fairly called inadequate.
We have, nevertheless, reviewed the record to ascertain whether the evidence was legally sufficient to support the verdict. In so doing, we are required to take the evidence and all inferences reasonably deducible therefrom in the light most favorable to the appellee.12 While the issue of damages was hotly contested, we find that there was competent evidence and reasonable inferences deducible therefrom to support the verdict.
IV
THE CONSORTIUM CLAIM: RELATION BACK OF AMENDMENT UNDER CIVIL RULE 15(c)
Jacqueline Jakoski filed her complaint for damages approximately 2 months before the 2-year statute of limitations of
We do not agree.
Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.
Holland concedes that Mr. Jakoski‘s cause of action for loss of consortium “is in part related to the principal case, and any defense that bars the injured spouse from recovering bars a claim for loss of consortium.” Inasmuch as the identical conduct, transaction, and occurrence from the basis for Mr. Jakoski‘s consortium claim and for his wife‘s personal injury claim, we are not persuaded that Holland can reasonably rely on the bar of the statute of limitations.
Our recent decision in Burns v. Anchorage Funeral Chapel13 is dispositive of the question. In that case, the administrator of the Estate of Wilma Fuglemsmo sought to add decedent‘s next of kin as plaintiffs. The superior court denied the motion to add the parties plaintiff on the ground that any claim the next of kin might have possessed was barred by the controlling statute of limitations. In reversing, we inquired into the policies embodied in
This rule of civil procedure and the policy it reflects is of controlling significance in the decision of this amendment issue. Count II of the complaint sufficiently identified the specific facts upon which the claim for relief was based, the persons injured, and further specified that recovery was sought for their benefit. Thus in the context of the pleadings in this case, Anchorage Funeral was sufficiently informed of the nature of the asserted claim for relief so that no new claim for relief would have been injected by virtue of an amendment which added or substituted the next of kin as parties plaintiff. Our analysis is in accord with the basic rule applied by federal courts in determining whether an amendment introduces a new claim for relief. The federal authorities hold that if the amendment is based on the same specific conduct of the defendant upon which the original claim for relief was founded, no new claim for relief is stated by the amendment. We are thus led to the conclusion that an amendment providing for the addition of the next of kin as parties plaintiff would not have given rise to a new claim for relief since the amended Count II would have still been based upon the same acts relied upon in the original pleading of which Anchorage Funeral had ample notice. Under the provisions of
Civil Rule 15(c) such amendment relates back to the date of Burns’ original complaint. Since the amendment adding parties plaintiff relates back to the date of the original complaint, the two year tort statute of limitations is no bar to prosecution of the claim for relief under Count II.14
As in Burns, the salient fact here is that the amendment adding Mr. Jakoski‘s consortium claim was based upon the same conduct, transaction, and occurrence relied upon in the original pleading, Holland had ample notice of the cause of action. Under the provisions of
V
AWARD OF ATTORNEY‘S FEES
We are again confronted with another aspect of the oft-litigated question of allowance of attorney‘s fees.16 On January
The trial judge awarded the Jakoskis an allowance for attorney‘s fees for services rendered up to the time that the offer of judgment was made in the amount of $2,325. Holland was awarded $6,250 for fees incurred after the date of the offer. He has cross-appealed, contending that there was no proper basis for making the award to the Jakoskis and that the award to him was inadequate in view of the amount of the Jakoskis’ claim and a detailed affidavit indicating that post-offer-of-judgment services valued at $11,622.10 were rendered by Holland‘s attorney.
At any time more than 10 days before trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer.
Since the rule provides that the offer allow judgment “with costs then accrued” and since costs under
In tailoring “prevailing party” concepts to the specific provisions of
The Jakoskis presented no itemization of attorney‘s services rendered prior to the date of the offer of judgment. Judge Davis allowed them the amount they would have been entitled to under
We next are required to review the allowance of $6,250 in attorney‘s fees awarded Holland, who contends that he should have been awarded a minimum of $11,622 for the period of time subsequent to the date of offer. In determining what he considered to be a reasonable fee, Judge Davis calculated:
| 8 days of trial at $300 per day | $2,400 |
| Depositions taken | 1,162 |
| Other necessary legal activities (witness interviews, trial preparation, research) | 2,688 |
| $ 6,250 |
In ascertaining the amount of attorney‘s fee to be allowed a defendant successful in holding a verdict to less than his offer, the trial judge should use the same general criteria as in a case where a defendant is the prevailing party. We recently discussed such criteria in Malvo v.
Holland emphasizes the size of plaintiff‘s claim. Counsel for plaintiffs asked for a verdict of $545,000. But if defendant had seriously considered the case to have a value even remotely approaching that figure, he probably would have offered more than $25,000, particularly since plaintiff had a strong case on the issue of liability. By analogy, if $25,000 was to be taken as the value of the case,
Affirmed.
CONNOR, J., dissents.
ERWIN and FITZGERALD, JJ., not participating.
CONNOR, Justice (dissenting).
I respectfully dissent from the portion of the majority opinion which holds that it was harmless error to exclude the proffered opinion testimony of the witnesses Sturgeon and Reid. In my view their testimony was not cumulative to that of the witness Echols.
Mr. Echols admitted on cross-examination by defense counsel that Mrs. Jakoski would have had to have been on sick leave for a week before he would ever have noticed it. In contrast with these other witnesses, Sturgeon and Reid emerge as having observed the effects of Mrs. Jakoski‘s injuries from a unique vantage point. Sturgeon faced Mrs. Jakoski across their desks. Reid worked with Mrs. Jakoski in the two-room office which housed their section and was in constant contact with her both before and after the accident. Thus, working literally along-side her and mindful of her day-to-day condition, Sturgeon and Reid were able to provide important details about which none of the other witnesses were or could have been knowledgeable. For these reasons I view the exclusion of the testimony as affecting the substantial rights of Mrs. Jakoski and as constituting reversible, not harmless, error.
With the balance of the majority opinion I agree.
Notes
(a) Allowance to Prevailing Party as Costs.
(1) Unless the court, in its discretion, otherwise directs, the following schedule of attorney‘s fees will be adhered to in fixing such fees for the party recovering any money judgment therein, as part of the costs of the action allowed by law:
Attorney‘s Fees In Average Cases
| Contested | Without Trial | Non-Contested | |
| First $ 2,000 | 25% | 20% | 15% |
| Next $ 3,000 | 20% | 15% | 12.5% |
| Next $ 5,000 | 15% | 12.5% | 10% |
| Over $10,000 | 10% | 7.5% | 5% |
Should no recovery be had, attorney‘s fees for the prevailing party may be fixed by the court as a part of the costs of the action, in its discretion, in a reasonable amount.
(2) In actions where the money judgment is not an accurate criteria for determining the fee to be allowed to the prevailing side, the court shall award a fee commensurate with the amount and value of legal services rendered.
(3) The allowance of attorney‘s fees by the court in conformance with the foregoing schedule is not to be construed as fixing the fees between attorney and client.
Except when express provision therefor is made either in a statute of the state or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs. The procedure for the taxing of costs by the clerk and review of his action by the court shall be governed by