*1 (4) all of' the four requirements has meets the fy the board that he character ” * * * proviso clause determined qualifications named the Board. (Emphasis ours.) 9(a). subsection states: section wording The first proviso This modifies the preceding requires and shall he “Any person apply that an may examination shall be given Alaska applicant eligible admission is found to be not qualified Bar, by reciprocity any as one of upon examination the four condi * * (Em- tions. If the finds provided applicant Act board as in this qualified phasis all ours.) conditions he shall be admitted without examination and other provides two clearly wording above upon wise substantially the same terms and admission methods which different conditions as jurisdiction are fixed in his accomplished upon Bar Alaska be — the admission of attorneys. Alaska reciprocity. examination petitioner Since was found to have satisfied 9(a) subsection wording of The first qualification all requirements of the pertinent part: states proviso clause he could not be Attorneys good “Reciprocity. take an examination. another state standing in Bar of The Clerk of this court will therefore * * * members of the which admits prepare a certificate admission for de- * * * admitted shall be Bar Alaska livery petitioner upon his taking the up- otherwise without examination required oath. same terms substantially respec- in their conditions as are fixed the admission jurisdictions tive * *
attorneys (Em- from Alaska
phasis ours.) clear and emphasized portion seems shall be
unambiguous. Admission without admission shall Otherwise examination. Raymond RIDGEWAY, Individually and as substantially terms and condi- upon the same Danny Ridgeway, next friend for respective juris- in their minor, Appellant, as are fixed tions a attorneys from for the admission of dictions “without examination”
Alaska. words NORTH STAR TERMINAL & STEVE- COMPANY, Appellee. the board’s ignored to accommodate DORING must applicants treated in theory should be 181. No. their state would same manner Supreme Court Alaska. applicants. Alaska treat Feb. proviso brings us to the clause This part: 9(a) which states
subsection
“Provided, however, prereq- that as a to admission to the Alaska Bar
uisite any require attor- Board shall such examination,
neys pass an to take and applicant passed (1)
unless the examination, (2) engaged bar
state practice of law at least
the active years previous out of the six
five * * * filing (3) fore graduate school accredited law * * American Bar Association *2 Irvine, M. Savage, of Clark & Sav- John
age, Anchorage,
appellant.
for
Manders,
appel-
Anchorage,
E.
John
lee.
NESBETT,
J.,
Before
and DIMOND
C.
AREND,
JJ.
NESBETT, Chief Justice.
This
appeal
from a verdict and
judgment
the defendant
a suit
by plaintiff
brought
individually and
Danny, minor,
half
his son
for dam-
ages
alleged
resulting
negligent
from the
injury
employee
of the lad
of de-
fendant-appellee. As an affirmative defense
answer,
in its amended
application
compensa-
for workmen’s
tion benefits had been
made
that some
paid
already
Danny.
benefits
question presented
The first
is whether
repeated questions and argument by coun-
appellee pertaining
sel for
to the fact that
plaintiff-appellant
had made
compensation
preju-
benefits
plaintiff’s
diced
case that a new trial should
granted.
pre-trial
conference was ordered
held on
1961. Plaintiff filed the
June
memorandum,
pre-trial
appar-
ently
August
no conference was held until
pre-
26, 1961,
days
three
before
No
prepared.
In an
trial order
affidavit
support
of his motion for a new
filed
trial, counsel
stated that at the
for explana-
long
then delivered a
ruled The
conference
nothing
tion to the
on workmen’s
'compensation had
that workmen’s
coverage, explaining
anything
concern-
counsel
issues and
to do with the
*3
compensation
ing
strictly
was
immaterial to
by the
abide
reluctantly
to
agreed
defendant
case,
only
the
gone
the
that he had
into
mat-
motion
hearing on the
judge’s
At the
view.
because,'
he
ter
the
that
had
that
to
extent
he
stated
judge
for new trial the trial
going
con-
as far as we
with-
“having
affidavit
entirely agree
the
did not
with
[si'c]
any objection
question,
out
to
the
happened
the
at the
cerning what
you
Jury
had
that
will--
he
should have the facts so
was that
ference. His recollection
judge
position
coun-
know what was done.” The
then
thought
stated that he
the
un-
on
specifically
the defense based
plaintiff
that
overruled
sel for
was
taken and
well
keep
compensation,
mind,
workmen’s
that there
he
stated
changed
he
would
less
election,
had
no
and
compensation
that
concerning the
anything
out
proceed
The'
entitled to
with the action.
case.
jury
to
specifically
was not
instructed
disre-
After
the trial
jury
the
had been selected
gard
testimony.
the
that
judge advised counsel
defendant
for
'occasions, du.ring
Oh at
the re-
least two
as to
jury
the
he did not intend
advise
'subject.of work-1
mainder of the trial the
recess,
During a
this affirmative defense.
'by'
compensation
brought up
men’s
approximately
com-
when
trial was
half
the
posed
questions
by'
defendant
counsel for
approached
pleted,- counsel for defendant
by
plain-
objection
for
and
made
counsel
,
judge
the
alone in chambers and obtained
argument
jury,
During closing
the
tiff.'
permission
Danny Ridge-
ask the witness
'
brought' the'
again
for
coünsel
way
question
com-
concerning
workmen’s
'
;
up by argúing:
matter
this,
pensation. Upon learning of
counsel'
' n “Now,
peculiar position
I’m in a
here—(cid:127)
judge.during
then contacted the
'
very peculiar, because
the Court
obj
was ad-
the
and
ected. He
same recess
regard
originally .instructed in
to the.
vised
that the
would
the
compensation,
bring
matter of
I
permitted
pertained to an'
it
because'
up.”
.
.
it
defense,
if counsel'
affirmative
but that
(cid:127)
plaintiff objected, he
be-sustained:
would
to.,
permitted
objection,
Over
counsel-was
argue
doing
the evidence
so insisted.
he had
witness was then asked if
paid:
that
the- doctor bills had been
'This
compensation
elected to receive workmen’s
disputed
for;
-immediately
counsel'
replied in
benefits and
the affirmative.
plaintiff. The court
then took over and-
plaintiff'obj
Counsel
ected. The follow-
-
point
jury
that
stated
the
the
immar
transpired.
ing then
them,
terial to
issues before
but that if'
Having going
"THE COURT:
[sic]
been, paid,
riot
doctor bills had
if
I
into
this far want to finish mat-
Compensation
Alaska
Workmen’s
Board-
Now,
probably,
stipulation
ter out.
boy
injured
scope;
that
found
agree
can
counsel
employment,
paid.,
bills would be
you
agree
pending.
is still
Will
—-
of the
again
At the close
you.
both of
.jury
orally
length
instructed the
at some
on
Yes,
“MR.
sir.
CLARK:
operation
of the
the mechanics
Alas-
you
stated,
“THE COURT: And will
tell
Compensation Act and
ka Workmen’s
much,
any,
Jury,
how
has been
he
intended
overrule
by way
received
Workman’s Com-
raising
compensation,
-had;
'
pensation?
it when summarizing
not'mentioned
really
beginning
at the
of'fhe trial.'
“MR. CLARK:
I
don’t know.
;
$300.00,
it,
about
I think it’s
isn’t
study
lengthy
John?
leads
instruction
jury may
very
the conclusion
“MR. MANDERS:
us
$380.00.”
ject
interpreted
judge’s
objection by
well
remarks
plaintiff.
being
The judge
assurance
since
ruling
stated that his
was based
injured
job,
concededly
his doctor
the fact
that defendant had
compensation
bills
that his workmen’s
would be taken care of and
in an affirmative
wages
though
previ-
for loss of
even
he had twice
ously
no con-
ruled
determined
board
was of
that the
defense was not avail-
cern of
able to
before them.
point
in the case
defendant.
From
on-
ward
specifically
the judge’s
was not
instructed
control over the situation
disregard
point.
seems
testimony
all
at this
no
point
have .relaxed to the
control.
Counsel
defendant was even
*4
is that
im
general rule
The
permitted
argue
to
the inadmissible
jury
proper
information
bring
to
before the
dence to
jury
the
although
judge by
the
that
plaintiff’s right
injured
to
regarding the
time had unequivocally
de-
overruled the
benefits. To do
workmen’s
fense in
explanations
one of
jury.
his
to the
error,
generally
to be reversible
held
requiring
judge
The
trial
have
a new trial.
should
given a
ruling
definite
on the
be
principle
on
The rule is based
the
fore trial, preferably in
the
writing after
that a tort-feasor
entitled
have his
is not
to
pre-trial conference. He should then have
liability
merely
reduced
because
ruling
adhered to the
himself and
enough
was fortunate
have received com
to
compliance by
strict
counsel. Deliberate
expenses
pensation
injuries
for his
or
from
breach of the .rule
counsel would
source,1
assumption
a collateral
and on the
grounds
disciplinary
action
the court
likely
knowledge
that
that fact will more
of
imposition
of costs in the event mis
of
jury against
not
than
influence the
unequivocally
trial. Failure to
announce
liability
on the issues
and dama
of
in
requires
and enforce the rule
this case
ges.2
and a new
reversal
trial at considerable
trial
appears
recog-
to have
additional cost
to
state.3
pre-trial
general
nized
rule at the
It
alleged
is next
the trial court erred
again
summarizing
ference and
when
instructing
jury on contributory neg-
at
the commence-
ligence when no evidence had been adduced
ment of the
written
order
during the trial which would
giv-
warrant
settled the matter. Counsel
ing the instruction.
definitely
defendant was
advised
at the
beginning
of the trial that the
not'
employed
Danny
an Anchorage
be advised on
to
the affirmative defense
market. Late
food
afternoon of
compensation.
workmen’s
based on
For
day
injury
his
he was
ordered
apparent
reason not
from
some
the record
employer to drive a truck to defendant’s
appears
changed
re-
pick up
warehouse
number of cases
during
his views
laxed
course of the
-
goods. According
Danny’s
of canned
permit
when he decided
testimony he
at the
arrived
warehouse about
question
to ask a
pertaining
before closing
fifteen minutes
He
time.
compensation coverage,
trips
previous
sub-
made five
to the ware-
Lines,
Hargis,
applying
Texas;
v.
Bus
Inc.
204
1. Denco
law of
see also An
339,
560,
(1951).
1154, (1961).
not.,
229 P.2d
564
A.L.R.2d
Okl.
77
Hernandez,
Hernandez,
(9th
v.
2. Burnett
65J
manager
day.
We are of the
it was
The warehouse
view
house
day
to give
error
preparing
close for the
instruction. The defend
having
service
ant had the
quite disgruntled
proving
at
burden
its
pair
by preponderance
quitting
near
time.
truck so
accustomed
began
truck in their
evidence
to load the
evidence.
introduced no
passing
pitch-
manager
support
manner with the
whatsoever
defense.
boy’s
truck
ing
goods
testimony only proved
from forklift
own
that he
the cases
Danny
platform
employer’s
down
was exercising
warehouse
contractual
right
and stack
goods
who stood
the truck
receive
remove
from defendant’s
However,
warehouse;
anger
of his
them.
because
inten
manager
tionally
occasion
warehouse
kicked
goods
several
off the
cases
goods
narrowly
Danny;
kicked three cases of
off
forklift
forklift which
missed
Danny
engaged
stacking
at once.
that he
again
was warned not to do this
The cases fell onto
because
the danger
that moment.
but that he
do it
missing
narrowly
bed
him.
again, causing
injury.
truck
serious
This testi
manager
mony
warned the warehouse
who
did not raise a
of contribu
*5
having
tory
work at
swearing
negligence
still
over
jury.
lad
The
had
passed
every
The
then
two
manager
late hour.
right
that after he had
assume
in
manner.
or three cases
the accustomed
manager
warned the
-of
danger
in
Danny
a “thunk” as
testified that he heard
volved the incident would not be deliberate
a
and a
leaning
stacking
ly repeated.
he
over
case
tendency
The
a
natural
of
split
goods
him in
youth
second later a case of
hit
of sixteen would be to
an
trust that
back,
injuries
causing
responsible
the middle of
position
adult
defend
of
manager
The
complained
warehouse
of.
manager
ant’s warehouse
would not con
any
kicking
cases off the forklift in-
dangerous practice
denied
tinue
though
even
on direct examination but ad-
may
the truck
angered.
duty
have
he
been
His
may
cross-examination that he
employer’s
mitted
to service his
No
customers.
Danny
a
which struck
thrown
box
have
demands
been
had
made on
unreasonable
Danny
assumed,
the back.
obviously
him.
and had
assume,
every
right
that he could con
contributory
pleaded
defendant had
The
loading operation
tinue
free from the
A full
affirmative defense.
negligence
bodily
infliction
intentional
of
harm.
complete
instruction on
and
contributory negligence
of
even
Exception
in-
the court.
given
had
a
if there
been
such
this
plain-
was taken
struction
case,
a
intentionally
is not
tort
exception was taken the
time
At the
tiff.
committed.4
admittedly
there was
stated
trial
colleague
concurring
Our
feels that we
contributory negli-
evidence of
no direct
injected the issue
intentional
tort
pleaded
had
that defendant
but
gence,
it.and
appeal.
case on
We
into the
have not in-
properly
Danny
might
infer
'the
.that
trial
do so. The
tended to
stated
contributorily negligent. During
opinion
inwas
his
enough
that there
motion
plaintiff’s
for a new
hearing
intention to
of an
dence
commit a tort to
that the
judge commented
instruc-
giving the instruction on
warrant
in that the
warranted
could
tion
tributory negligence.
hold
We
that even
contributorily
found
evidence,
was such
contributory
if there
continuing
work under the
negligent
not
be a valid
defense.
circumstances, knowing that the warehouse
judgment is
actually try-
reversed and
mad
him
is
manager was
case
a new
remanded for
hurt him.
ing to
Harris, Opinion
Restatement,
(1934);
No.
cf. McLemore