*1 P.2d SANCHEZ, Plaintiff/Appellant, Lorenzo Cross-Respondent, GALEY, Jr.,
Frank Bennett Creek d/b/a Farms, Anderson, Rusty Defend
ants/Respondents Cross-Appel
lants.
No. 15918.
Supreme Court of Idaho.
Oct. 1986. Rehearing
On Denial of March *2 (argued), Boise,
Ventrella for defend- ants/respondents cross-appellants. *3 HUNTLEY, Justice. appeal
This arises from an action for by filed Lorenzo Sanchez as a injury result of an sustained while em- ployed by Bennett Creek Farms. Sanchez Creek, had worked at Bennett owned Jr., Galey, Frank for approximately one week severing before he suffered the of his (dominant) right unclogging hand while a potato by Rusty harvester driven Anderson, employee an of Bennett Creek. negligence The found defendants’ proximate be the sole cause of Sanchez’s injuries $1,350,000 and awarded Sanchez damages. The district court denied defend- ants’ motion for a new trial based on their prejudice alleg- contentions of unfair due to edly improper jury instructions, improper admission of certain testimony regarding damages, Sanchez’s improper economic and denial of admission of statements made prior However, Anderson pursu- to trial. of Dinneen v. interpretation ant to its Finch, (1979), the trial court ordered that Sanchez elect to judgment either submit to a remittitur of ground or to a new trial on the pursuant the verdict was excessive Dinneen, supra and I.R.C.P. 59(a)(5). 6, 1982, On November Sanchez was working pick- at Bennett as a Creek “clod required er.” One his duties that he occasionally unclog potato harvester on which he worked. person charge of the farm at that Nelson;
time was Dick second in command Anderson, Gary Rusty op- Smith. potato pre- erator harvester had not viously operated potato harvester. Smith gave training Anderson over a two-week period operation on the of the harvester particular, and the In attached tractor. Hepworth (argued) John and John T. Le- Smith showed Anderson the chain and Falls, (argued), zamiz Jerry Twin and Goi- sprockets accident, involved in the in- coechea, Boise, plaintiff/appellant disengage power structed him to take- cross-respondent. (the power off shaft transfers from Comstock, Jr., harvester, E. Tyler, David M. Robert tractor to referred to as PTO) (argued), Jeffery Donald A. Kofoed anyone unclogging J. whenever harvester, instructed him to remain in throughout Anderson day of the acci- dent, unclogged tractor cab while workers and that always Anderson had turned machine, and directed him to make off the PTO as he had been instructed certain everyone was clear of the except machine on the sole occasion of the accident. reengaging before proce- PTO. This contrast, In Anderson testified that over dure was made by safety warning clear previous one-and-one-half to two weeks signs on the harvester. adopted different, he had faster method Sanchez equip- was unfamiliar with the unclogging the machine. His method ment, spoke Eng- neither nor stopping understood involved the tractor with the PTO lish, and so could not engaged, read or understand getting and then himself out of *4 English safety Anderson, the warnings. pushing the cab and with his feet to cause spoke Spanish, who digger demonstrated to begin turning the chain to again. unclog Sanchez how to During procedure, testified, harvester and this Anderson perform assignments. his other request Anderson he did not' the workers to come fully appreciated admitted that he that San- down off the harvester and that work- chez and the other depended workers on gotten ers had not under the harvester him for safety. their prior to the accident. Anderson testified that he following procedure was this with Four individuals witnessed the accident: engaged the PTO when the accident oc- (a Esquivel Jose Louis co-worker of San- curred. All of this testimony contrary was chez), (driving Bernardo Corral the truck deposition to Anderson’s taken three harvester), beside the Anderson and San- accident, months after in which addition, chez. In Smith was close by and Anderson stated that he had shut off the had prior observed Anderson’s activities PTO while the being harvester was un- the accident. clogged, reengaged and then had it. Coun- Esquivel and Sanchez they testified that deposition sel for Sanchez used this im- unclogging had been the harvester in the peach testimony. Anderson’s trial manner demonstrated Anderson for five Kloss, attempted Dr. John who had days. They or six testified that immediate- surgical replantation right of the hand and ly prior accident, to the the machine had fingers, regarding three testified the exten- clogged, stopped Anderson had and disen- complications sive medical which occurred harvester, gaged the and Anderson had procedures per- and the numerous medical directed them to top descend from the required formed before trial and in the unclog the machine to the harvester. This complete- future. Sanchez’s hand remains they proceeded when, to do after a few nonfunctional, ly perceives only slight minutes warning, and without the machine sensation. Dr. Kloss testified as to the started, severing Sanchez’s hand and fin- difficulty right-handed persons such as gers. Corral also testified that when the Sanchez who have lost the use of that clogged, stopped harvester Anderson dominant hand. He testified that Sanchez disengaged signaled the harvester and then hand, occupational had no function in the stop signaled him to the truck and against and recommended Sanchez re- go workers to underneath the machine to turning to manual labor. unclog got it. Corral out of his truck and Hurst, standing alongside psychologist, truck when the Dr. testified on According accident occurred. psychological to Corral’s difficulties Sanchez was ex- minutes, testimony, after periencing injury. several rather as a result of the signal position than Corral to the truck Ben-Zion, economist, Barry Dr. a forensic restarting, engaged before Anderson past testified on Sanchez’s lost and future warning. harvester without wages. on testimony His was based an Smith testified that he had carefully ob- interview with Sanchez and statistics com- operating piled by served Anderson machine for the Bureau of Labor California weeks, Adjusting two-and-one-half and had observed and the State of Idaho. vari- factors, appealed Ben-Zion calcu- Sanchez the remittitur an ous economic Dr. Court, interlocutory lated the value of Sanchez’s lost to this and also order earning approximate- capacity future petitioned prohibition. to be The for- for writ $700,070. ly govern- denied, He cited U.S. to two mer accepted, latter (prepared by ment the Veterans’ studies stayed proceedings further below were Administration) which demonstrated pending appeal. The defendants cross- injured an who lost the use of worker has appealed. expect, hand could on aver- dominant (1) appeal. There are eleven issues on pre-morbidity earnings age, a reduction Whether the district court was correct Dr. Ben-Zion that since testified 70%. Dinneen, supra, interpretation its re- only equivalent Sanchez of a sixth had quiring opinion to substitute its education, grade he probably would suffer (2) jury; wheth- earning capacity greater a reduction in er it was error instruct the 70%, than due to forced reliance on his regulations con- violations of certain OSHA physical prowess and of his the use hands. per se; (3) stituted negligence whether also Dr. Ben-Zion testified that value of in stating there was error as a matter of *5 lost services which Sanchez had household law, adjuster that an insurance claims was $3,000 per difficulty performing year. was agent purposes an of insured for of to Sanchez himself also testified the diffi- binding with an admission of defendants did, indeed, performing culties he have negligence by possibly communicated various household services. (4) adjuster expert; to the defendants’ sought testimony The defense from Nel- deny whether to admission it was error son as a he to conversation had with by of testimony offered defendants con- day Anderson on the after accident. cerning allegedly an consistent statement When hearsay Sanchez’s counsel made a Anderson, Rusty prior of defendant made objection, argued defense counsel trial, to purpose and offered for the of prior statement was admissible as a con- charge fabrication; rebutting a of recent charge sistent statement offered rebut a to (5) plain- permit whether it error to was of recent fabrication. The court sustained concerning to testify tiff’s economist lost objection. future, earnings, present and over the de- cross-examination, During defendants’ objection fendants’ that the lacked evidence Blotter, expert, during Dr. testified that his foundation; (6) whether it error to was
first visit
had
he
noticed that one of the
permit plaintiff’s economist
Veter-
to use
persons present had stated
“the
trac-
Security
ans’
and Social
Ad-
Administration
operator
negligence
tor
admits
in not shut-
disability
ministration
studies as basis for
a
ting
persons
off the PTO.”
One of
despite
objec-
his calculations
defendants’
present during the visit was insurance
foundation;
testimony
tion that the
lacked
adjuster
claims
Hagen.
Sandee
The court
(7)
an
whether it was
abuse of discretion to
persons present
instructed the
that the
deny
motion
trial
defendants’
for new
agents
Galey.
were
of defendant
Defend- grounds
surprise,
plaintiff’s
after
econo-
that,
unsuccessfully objected
ants’ counsel
his
opinion partially
mist had based
Hagen
if indeed it was
who made such a
upon disability
which he had failed
studies
statement,
agent
she
not an
whose
deposition
one
to disclose in his
taken
week
binding
statements were
on defendant Ga-
trial; (8) whether it
error to
before
ley.
grant plaintiff’s
preclud-
motion in limine
Following
ing any
plaintiff’s alienage
the court’s order of a new trial
mention
sta-
$400,000
tus; (9)
accepted
unless
whether it was error to admit evi-
Sanchez
a
remit-
$950,000,
plaintiff’s
house-
titur to
Sanchez
a motion for
dence on the value
lost
filed
despite
objection
supported
an
hold services
defendants’
reconsideration
affidavit
foundation; (10)
San-
jury foreperson,
Payne.
taken from
that it lacked
whether
Suzette
post-judgment
to
interest
The district court denied the motion.
chez
entitled
judg- MacGregor Triangle Company,
from the date of the district court’s
83 Idaho
145, 150,
(1961).
(regardless
court
but
safeguard
reaching
just
an additional
to
a
59(A)(5)
UNDER I.R.C.P.
I. MOTIONS
responsi
has the
result.
court
“[T]he
only question
a
appeal
This
raises not
bility weigh
the evidence and make the
Finch,
v.
application
of Dinneen
sup
the evidence
determination whether
620,
(1979)to this
Idaho
In the instant the trial court ex- best he ever and further specifically plained that was the Dinneen basis of its supported found that the evidence decision, despite the confusion and award, (he frustra- jury’s having amount of the interpreting tion it encountered in Din- stated that he would have awarded less on neen: items). some give[s] guidance case Dinneen [T]he On the basis the statements of the significant disparity as to what means to court, we cannot ascertain whether point suggesting passion preju- or the trial court was either shocked and, very subjective dice. This is I tell award, jury’s or whether it found that you, posi- I think the most uncomfortable Rather, award unconscionable. the trial tion I’ve felt I’ve ever been in. [T]he amount, merely court its substituted award through required go court is to ... by way reached of a different method of painstaking troubling process. very calculation, jury. for that of the The trial here, occasionally And do like I did sub- finding court made no that the amount of my opinion jury. stitute jury “appeared verdict to have been added.) (Emphasis given passion under the influence of Moreover, the trial court indicated Therefore, prejudice.” granting the order jury that he found no fault with the remittitur or new trial is set aside. We prompt his conditional order of new trial: may remand to the trial court so that it I I impressed jury, I was with the think. findings enter of fact as to whether he thought very jury. we had a well selected was, fact, award, jury shocked thought they good I were a cross-section found such award unconscionable so as to income, age, occupations, intelligence, appearance given have the that it was un- certainly I think I conscientious. don’t prejudice. der the influence of say any I’ve could had a finer Following findings, entry of those extremely case and that made me uncom remittitur, either re-institute the standpoint, fortable from that to have to so, appropriate or not do whichever is go frankly I second-guess. back and But opinion. consistent with this it way don’t see around under the decision____ I I Dinneen decided should AS II. OSHA VIOLATIONS could, analyze the evidence as best I PER NEGLIGENCE SE I justified, decide what the most felt was comparison and then what that see Next, Farms respondent Bennett Creek (Emphasis that verdict would indicate. resulting from instruc- asserts error added.) instructed that viola- tions 18 & which adopted by safety two standards tions of However, telling the most comment *8 Occupational Safety and the Federal made the trial court is that “there (OSHA) would con- Health Administration clearly support sufficient evidence to of law. negligence as a matter stitute plaintiff’s both the verdict favor on the liability issue of and the amount dam- the standard ex- No. 18 cited Instruction added.) (Emphasis ages awarded to him." 1928.57(6),2while pressed 29 C.F.R. § upon 29 candor, based Instruction No. 19 was Using commendable 1928.57(H).3 praised being of the one C.F.R. § 1928.57(6) power’ stop engine, provides: 1. disconnect 2. 29 C.F.R. § machine movement to and wait for all source employment At the time of their initial and at cleaning unclogging equip- stop before or employer annually shall least thereafter the ment; every employee operation in the safe instruct everyone is clear of the ma- 2. make sure servicing equipment and of all with which engine, engaging starting before chine involved, employee will be and at least operating power the machine. or following operating practices safe should be 1928.57(11) provides: 29 C.F.R. § covered: Both require standards employer regulation that an must have been pre intended to must operating practic- follow several safe type vent the of harm defendant’s act or es, namely any engine power or source omission (Stephens Stearns, caused v. must disengaged during servicing, 249, 257, (1984); Idaho third, P.2d 41 cleaning unclogging, or and that the em- plaintiff must be a member of the class ployer persons must be sure that all are persons regulation the statute or clear of the machine reengaging before designed protect (Stephens, 106 Idaho at power. 41); fourth, 678 P.2d at and the viola proximate tion must have been a cause of
Bennett
argues
Creek Farms
that allow-
injury.
(Leliefeld
Johnson,
v.
104 Ida
negligence
per
to find
se from
357, 370,
(1983).
ho
of employees arising
of,
out
Respondent
Bennett Creek Farms none-
of,
course
employment.
that,
argues
theless
allowing violations .of
regulations
OSHA
to be
in finding
used
question
of whether the violation of
negligence per se
express
circumvents the
regulations
promulgated by OSHA con-
653(b)(4),
directive of 29 U.S.C.
which
§
negligence
stitutes
as a matter of
law
requires
regulations
that OSHA
not be
Idaho is one of
impression.
first
used
enlarge
“to
or diminish or effect in
reaching
decision,
In
our
we first note
manner the
...
common law or statu-
that,
Idaho,
it is well established that
duties,
tory rights,
ers____”
employ-
liabilities of
statutes
regulations
administrative
applicable
define the
standard of care
The courts
are divided
this issue. The
owed, and that violations of such statutes
is,
majority
decided
and modern trend
how-
regulations may
negligence
constitute
ever,
regulations
to allow OSHA
to be used
per se. Brizendine v. Nampa & Meridian
negligence per
to establish
se when the
Dist.,
Irrigation
580, 586,
97 Idaho
plaintiff
employee
is an
(1976);
defendant.
P.2d 80
Riley
Larson,
v.
91 Idaho
831, 832,
(1967);
St. Ex. rel.
recently,
Most
the Fifth Circuit Court of
McKinney Richardson,
277 Appeals reiterated this view:
P.2d 272
Yards,
“In Melerine v.
Ship
Avondale
*9
must,
Inc.,
706,
however,
(5th Cir.1981),
Several criteria
659 F.2d
710-12
be
negligence
met before
regulations provide
as a matter
we held that OSHA
of law
First,
will be found.
regula
the statute or
evidence of the standard of care exacted
clearly
tion must
required
define the
employers,
may
stan
and thus
only be used
(Brizendine,
dard of conduct
negligence
per
at
to establish
se when the
586,
80); second,
548 P.2d at
the statute
plaintiff
employee
or
is an
of the defend-
moving
disconnected,
machinery part presents
Whenever a
and all machine movement
maintenance,
during servicing
a hazard
engine
or
stopped
servicing
before
or maintenance is
stopped,
power
shall be
performed.
source
618
ant____
Connecticut,
In Rabon v. Automatic Fasten Court of
Ridge
Wendland v.
Inc.,
1231,
ers,
Services,
672 F.2d
1238 and note 15
Inc.,
Construction
184
field
(5th Cir.1982),
173,
we reiterated that
a viola Conn.
tion of an OSHA
can be evi holds
provisions
of 29 U.S.C.
even,
negligence
appropri
dence of
653(b)(4) preclude
negli
instructions of
§
circumstances,
negligence
per
ate
gence per
arising
se
out of OSHA viola
se____” (Dixon v. International Har
tions.
Co.,
573,
(5th
vester
754 F.2d
581
Cir.
“A negligence per se instruction trans
1985)).4
forms the character of the factfinder’s
inquiry.
applicable
standard of care
law,
Applying Tennessee
under which a
is affected
such an instruction. Be
duty imposed by
regu-
breach of
statute or
cause the
key
standard of care is the
negligence per
plaintiff
lation is
if the
se
determining
liability,
factor
con
we
injured
persons
is a member of the class of
application
clude
negligence
that the
of a
regulation
designed
the statute or
was
,
per se instruction
protect,
affects common law
Appeals
the Sixth Circuit Court of
rights,
employers
duties and liabilities of
held that it was error not to instruct on
negligence per
upon
employees
respect
injuries
and
with
se based
a violation of
employees arising
Duty
the OSHA
out of an in the
General
Clause. Teal v.
course
Co.,
employment
E.I. DuPont
as
DeNemours
thering Congress’ purpose
assuring
se,
negligence per
we do not find these
possible every working
“so far as
man
persuasive
opin
decisions
because these
woman
the Nation safe and
ions
not confronted a statute
have
analo
working
healthful
conditions.” 29 U.S.C.
653(b)(4)...."
gous
to 29 U.S.C. §
651(b). (Teal
804).
728 F.2d at
§
(Wendland,
Bennett the creation of a civil cause Creek Farms plaintiff’s employ- arising against a case either a Supreme out of the of action by specific Kelley Wright ipated not covered OSHA 4. See also v. Howard S. Construc hazards Co., (1978); plaintiff Secretary tion regulations, Wash.2d Labor Co., Transportation hazard, Koll v. Manatt N.W.2d employer of which the must show (Iowa 1977). known, causing should have knew or *10 likely bodily injury. death or serious to cause 5. In order to establish a violation of the OSHA 654(a)(1). (Teal, 804). F.2d at U.S.C.A. 728 § 29 Clause, Duty General unantic- which covers
619
plaintiff’s
them the inference that certain statements
party
or a third
who is not the
er
(See
Ship
expert
employer.
Melerine v. Avondale
contained in the notes of defense
706,
(5th
Yards, Inc., 659 F.2d
709
Cir.
by
agent of the
Dr. Blotter were made
an
1981);
De
Barrera v. E.I. DuPont and
defendants.
915,
(5th
Co.,
Nemours
653 F.2d
920
&
question
by
made
The statement
Cir.1981); Kelley
Wright
v. Howard S.
Gary
persons,
of four
either
Smith
one
323,
Co., 90 Wash.2d
582
Construction
foreman,
(Bennett
Farms’
Creek
(1978);
500,
Specialties,
P.2d
507
v.
Otto
(one
supervisor); Bill Batt
Anderson’s
Inc.,
1240,
(N.Dist.Miss.
F.Supp.
attorneys);
Bennett
Farms’
Sandee
Creek
1974).)
(an
Hagen
adjuster with Safeco Insurance
above,
that,
only
apply
held
Of the
Otto
insurer);
Company,
Farms
Bennett Creek
law,
ing Mississippi
violations of OSHA
Ludiker, photographer,
re-
and/or Lonnie
prove neg
regulations could not be used to
sulting
following
by
in the
notation
Dr.
has,
case
ligence as a matter of law. That
negligence
driver admits
Blotter: “Tractor
however,
expressly
by the
been
discredited
shutting
Unfortunately,
in not
off PTO.”
Dixon, supra.6
Fifth Circuit
not recall which of the
Dr. Blotter does
not, however,
support-
the dearth of
It is
made the
four
statement.
argument
ing
respondents’
case law for
course,
purported
by
Of
statement
importantly,
which decides the issue. More
Anderson,
court and
Rusty
made out of
persuaded
we are
intent
Con-
truth,
inadmissible hear
offered for its
OSHA,
gress
enacting
namely
“to assure
recog
one of the
say unless it falls under
working
safe and healthful
conditions for
hearsay rule.
If
exceptions
nized
to the
Nation,”
every
in the
can
man and woman
Smith, it
by Gary
made
the statement was
by allowing
best be served
instructions of
agent,
of an
would be an admission
Hilbert
negligence per se for violations of OSHA
Co.,
Spokane
Railroad
v.
International
Teal,
regulations.
specific
As noted in
(1911)
54,
Farms, allowing still does not suffice to establish an erred in Dr. Blotter’s notes to be two.) However, agency relationship between the by jury. considered we deem harmless, pursuant interests of insurer and insured are often the error to I.R.C.P. during litigation; par the course of prejudice at odds find 61.7 We can Bennett ticularly During where, here, so before trial. settle Creek Farms there was ment, insurer have little incentive overwhelming showing made of such an fully represent policy the insured once negligence defendant’s and ultimate liabili- limits have been exceeded. Conflicts of ty- insured,
interest between insurer and
while
norm, are nonetheless common
not the
A
IV. THE ADMISSIBILITY OF
place.
Diego
San
Fed. Credit Union v.
PRIOR CONSISTENT
358,
Cal.App.3d
Society,
Ins.
162
Cumis
STATEMENT
(1984); Nike,
Cal.Rptr. 494
Inc. v. At
208
Next,
argues
Bennett Creek Farms
Co.,
F.Supp.
Mutual Ins.
578
948
lantic
failure
admit as
court’s
(1983); Previews, Inc. v.
Union
California
Anderson,
by Rusty
evidence the statement
Co.,
(9th
F.2d 1026
Cir.
Insurance
640
Nelson,
prior
made
to trial to Dick
to the
1981); Employer’s Fire Insurance Com
Rusty
effect that
Anderson had never di
Beals,
623,
better reasoned calls for how the admission of the demonstrated statement, since the interests clusion of the would have affected the outcome statement diverge insurer do to such and insured negligence. of the trial on the issue of Hagen, as an insur an extent that Sandee Indeed, engaged and the keep the PTO adjuster, reasonably ance claims cannot running the men were equipment while agent viewed as an of the insured. Accord unclogging machinery would be vio- if ingly, the statement was made Sandee safety Rusty proper procedures. lation Hagen, hearsay. it was inadmissible contradictory made several Anderson had statements, deposition. in his at trial and Assuming that the statement was made sought to be admitted was Hagen, touching and without on The statement by Sandee by all of the other multiple hearsay arising expressly from contradicted the issue of implica- quell an witnesses. Rather Dr. Blotter’s recordation of Sandee Ha- than fabrication, statement, the admission gen’s supposed the trial court tion of recent setting aside a verdict or for provides: new trial or for I.R.C.P. 61 disturbing vacating, modifying, a or otherwise error in ei- Rule 61. Harmless error. —No order, such judgment unless refusal to take the admission or the exclusion of evi- ther appears court inconsistent with to the action any ruling or dence and no error or defect in every stage justice. The court at substantial anything order or in done or omitted disregard any proceeding error or must by any parties ground of the court or proceeding which does not affect setting in the granting defect a new trial or for aside rights parties. vacating, modifying, granting substantial verdict or for
621
have,
likelihood,
by merely asserting
appeal
statement would
in all
foundation
“may
that the data
ju-
further embedded in the
not have been correct.”
minds of the
implication
rors an
of continued fabrication
Additionally, appellants argue
jury
part
Rusty
on the
Anderson. At
was well aware of the basis of Dr. Ben-
rate, the error was harmless.
opinion. Any questions
Zion’s
as to credi-
bility of such
have been
would
reflected
Lastly, respondent Bennett Creek
weight
the verdict.
of such evi-
“[T]he
Farms failed
proof
to make an offer of
jury.”
dence was for the
Meissner v.
in question
the statement
when the trial Smith,
563, 570,
94 Idaho
Under such circumstances we cannot state, law, as a matter of that it was an (“Reasonable Certainty”) abuse of discretion for the trial court to First, Bennett Creek argues Farms testimony. credibility admit the Dr. plaintiff’s economist, Ben-Zion, Dr. did not testimony specifically Ben-Zion’s be- adequately verify past employment infor- they fore the answered with their given Sanchez, mation him by and that verdict. such information suspect, was therefore since Sanchez was an party interested Factor) (Age Earnings easily could have falsified his records. Be- Next, argues Bennett Creek Farms this, respondent cause of argues, the final improperly Dr. Ben-Zion relied damage calculation for earnings future lost “age earnings increasing factor” his provided could not have the court with the by calculations of the to Sanchez requisite degree “reasonable certainty.” $330,000. that, Respondent argues while Wilson, 752, 761, Rindlisbaker v. 95 Idaho “age earnings (whereby factor” it is (1974). 421 P.2d earnings assumed that of a worker life) during increase the work have
However, “reasonable certain validity assessing earnings some future ty” the context of assessing damages for (i.e. doctors, occupations for certain law earnings requires future lost “only that the yers), assessing its usefulness in those of a damages be taken spec out of the realm of migrant questionable. farm worker ulation.” Jayo, Circle C Ranch Co. v. 353, 356, (1983); Idaho Lamb Conversely, argues age Sanchez that the Robinson, 703, 705, 620 P.2d earnings factor used Dr. Ben-Zion in Sanchez was entitled to calculating a total of in lost future earnings his history to his econo earnings composite was a broadbased of all If question mist. defendants wished workers, including farm labor- male U.S. data, they ers, could have done Security so either Social done Adminis- through discovery or respon- cross-examination of also notes that tration. Sanchez They Sanchez. presented discrediting cannot establish a lack of dents no evidence regarding percentage disability and the earnings used. The use of age factor *13 appropriate specific injuries econometric tool into the data as an economist translated economist, by the and the was vouched for quantifiable loss. In the instant future matter for weight given to it was a case, any by done the ta- translation was countering by defend- cross-examination testimony themselves. The of doctors bles experts. ants’ adequately more than de- Kloss and Hurst injury; name- fined the extent Sanchez’s earnings age factor We conclude that efforts, appel- ly, despite that all medical not, evidence to absent concrete used was not, have, any lant did and would never inherently unreliable that contrary, so law, in was, an in his dominant hand as a matter of useful function its admission by persuaded the trial court. occupation. abuse of discretion of an We are terms adequate testimony presents that such THE OF USING VET- VI. PROPRIETY sta- application for the of V.A. foundation ADMINISTRATION, SOCIAL ERANS disability of the domi- on total tistics based ADMINISTRATION, SECURITY nant hand. LABOR STATIS- AND BUREAU OF resulting application Dr. Ben-Zion’s DATA TICAL tables, conjunction in with his assess- employed various statistics Dr. Ben-Zion finding of Sanchez ment of the likelihood Administration, compiled by the Veterans nature, employment a non-manual were and Bureau Security Administration Social proper. reaching Data in an of Labor Statistical probable impairment of San- opinion on the According to the earning capacity. chez’s PREJUDICE TO RESPONDENTS VII. tables, with “average” an individual V.A. DUE TO SURPRISE injury by as that suffered San- the same that next contends Bennett Creek Farms “impairment in chez will encounter a 70% in fail- court abused its discretion earning capacity.” on for new trial ing grant to its motion Ben-Zion,an Respondents argue that Dr. Ben-Zion surprise after Dr. grounds of economist, qualified provide to was not disability studies as a basis used the V.A. rating, since such would entail a disability states he had opinion, which use it for his understanding medical nature Respondents deposition. not disclosed injury. Sanchez’s extent of therefore, were, to ade- they unable allege argues Dr. Ben-Zion did no Sanchez of Dr. Ben- very basis quately attack Rather, thing. merely he translated such opinion. Zion’s trial given him information on Sanchez’s “stating Hurst
injury by doctors Kloss and Ben- that Dr. The record reflects impairment total had suffered that Sanchez nor disclosed the concealed Zion neither monetary terms dominant hand” to of his in reach use such tables he would fact that Any medical employing the tables. reflects record also opinion. The his and, done the doctors nec- analysis was respondents failed fact that counsel the V.A. tables.8 essarily, by the framers of specifically deposition question to state a In information. such designed to elicit Respondents’ authority, Lamphere Dr. asked deed, specifically question no (App.1979) 94 N.M. Agnew, complete its opinion and his Ben-Zion for den., (c 614 P.2d 94 N.M. ert. then, directly due surprise, Any basis.9 545), testimony expert of an eco barred prepara of trial own lack respondents proper founda nomic for lack of witness testimony tion. there was no medical tion where loss was deposition, that the he testified validity In his of the V.A. tables 9. We note that the with his method provided counsel unquestioned. themselves is ap- which was a worksheet of calculation deposition. pended
Moreover, Therefore, subject deportation. even if we were find was tables, in the admittance of the such guarantee error there he would have would have been harmless due to its error wages applica- continued to receive rates prejudicial upon respondents. lack of effect jury, respon- ble the United States. The (I.R.C.P. 61). found While trial court argue, presented should been dents have respondents genuinely surprised were regarding probability with evidence of de- trial, by the use of the V.A. tables at portation average and the differences that, opinion, also stated its wages between farm workers Mexico *14 relatively use of the tables had little effect Therefore, and the United States. defend- upon the verdict: allege ants error due reversible to the Even the evidence from ex- defendant’s of the granting motion in limine. Janzen, pert, an support Dr. would A presented similar situation was to this earnings award for lost future to some in Patino Grigg Court & Anderson addition, extent. In of Dr. testimony Farms, (1975). Idaho P.2d 1170 97 542 may Hurst and Dr. Kloss had a have illegal injured Patino was an alien while significant impact aspect on this of the potato on a working combine on a farm significant verdict. Most of all have near Rupert. testimony plaintiff
been the of the him- Patino, jury In was instructed on self, weight jury placed upon and the statistics, mortality immigra- United States jurors they it. The instructed were that wage tion laws and federal minimum laws. accept testimony did not have to of appellants The therein that any argued jury of experts, give and could it the weight speculate they jury it was This instructions allowed the to felt entitled to. would testimony plaintiff have included the Dr. that would remain in the United study. Ben-Zion as to V.A. illegal There- reward him entry States and for his fore, appears unlikely it that the country. testimo- into this This Court stated: ny surprised which defendants had Appellants would have us substitute an significant effect on the overall verdict. gauging plaintiff’s damages instruction Finally, significance alleged country native terms income his “surprise” respondents issue to seems to It of Mexico. is well settled that dam- credence, given respondents lack that nei- ages earnings profits loss of must objected ther nor moved for continuance certainty be shown with reasonable presented when the V.A. were at tables compensatory based upon awards Rather, upon trial. the issue first arose speculation conjecture will not be al- Thus, pre- trial motion. post error was Wilson, lowed. Rindlisbaker v. 95 Ida- appeal. served for In the ho P.2d plaintiff-respondent case the suf- We hold that the court did not abuse permanent injuries. The fered serious failing grant to its discretion new many factors to evaluate when had surprise. due to injuries.
it for those assessed VIII. PLAIN- ADMISSIBILITY OF listed in the instructions ob- The factors
TIFF’S ALIENAGE STATUS by appellant to jected to were be con- Among with all of the evidence. sidered
Respondents next contend jury was the fact the evidence before the they effec opportunity were denied an plaintiff the United that the remained tively regard Dr. cross-examine Ben-Zion the time and had held Sanchez, States at of trial ing damage as a result of jobs his acci- two farm related before grant trial court’s a motion in limine dent, paid more than of which precluding both mention Sanchez’s status farm wage minimum work- illegal Respondents federal argue an alien. plaintiff’s was no evidence impacts directly such status ers. There the issue damages, since, illegal alien, wages in Mexico. as an Sanchez Ben-Zion, economist, objected expert find that the instructions Dr.. as an
We speculative conjectural. nor provided by were neither used various statistics the Bu- 254, 256, P.2d at 1170. 97 Idaho at place reau of Labor to a value on Sanchez’s $3,000year- loss. The statistics indicated a ease, In had been in the instant Sanchez ly totally loss for males disabled as to years the United more than six States figure household functions. This was then trial. To remand this case for the time of multiplied by fifty-one year Sanchez’s life permit trial to to consider new expectancy, yielding a total esti- or would not have whether Sanchez would mate of for loss of household ser- work force remained the United States’ testimony vices. more than Sanchez’s own speculation. invite mere would be to adequately provided a foundation accepted is that Bennett Creek fact apply which Dr. Ben-Zion could the statis- illegal of his labors as an alien and benefits provided by tics the Bureau of Labor. complain it is anomalous for defendant was, therefore, testimony Such admissible. being compensated his on the basis about receiving. wages he was *15 X. INTEREST POST JUDGMENT IX. LOSS OF HOUSEHOLD SERVICES Finally, parties have raised the issue Respondent next asserts that Dr. what, any, post-judgment if interest is testimony regarding the value Ben-Zion’s yet ripe owed Sanchez. That issue is not services was of Sanchez’s lost household light for of the remand or- resolution foundation and should not have without opinion. I dered Part of this been admitted. appellant. attorney No fees Costs to The reflects that Sanchez did tes- record awarded. ability tify regarding impairment of his fact, perform In household activities. DONALDSON, C.J., BISTLINE, and videotape depicting day his life was J., concur. evidence, objection, admitted into without specifically detailing his difficulties with BISTLINE, Justice, concurring. specially day-to-day activities. majority opin- fully While I concur provides the measure of Idaho law ion, helpful I to look to the feel that it is compen- ordinarily is such as will damage actual assessments of both the prejudice sate for loss or suffered. Beal v. jury. court and Corp., Larsen Ranch Mars (1978). Moreover, A review of the record establishes there is damages by measuring the assessment of no set standard for the value disparate as court and the were not so happiness. human health or v. Swanson prejudice. Those suggest By Through Adminis- U.S. Veterans (D.C.Idaho 1983). tration, findings F.Supp. were: IN THE VERDICT SANCHEZ GALEY Jury Calculations in the Memorandum The Presented Decision Evidence by Judge As Pound Rowett -$153,000 Loss of Household Services -$100,000 Actual Medicals ($3,000 per year year life 30,000 Future Medicals -$ expectancy) 21,000 Wages Already Lost -$ (Includes -$770,000 Wages Lost Future $330,000 “wage added when 25,000 Special Buy -$ To Devices earnings applied, and factor” 50,000 Disfigurement -$ Loss of impairment based 70% Enjoyment of Life Tables) assessment taken VA from -$210,000 Wages Lost Future -$100,000 Actual Medicals 10,500 Repatriation -$ to Labor Force 30,000 Future -$ Medicals -$300,000 Suffering Past Pain & 21,000 Wages Lost -$ -$200,000 -$276,000 Suff.(?) Suffering Pain Future & Past/Future Pain & $1,350,000 $946,500 Total Total past comparing trial court awarded After calculations and jury, the court I cannot conclude pain suffering. and future If the jury’s way ap- assessment in proven damages, special awarded 100% *16 pears have been a to made as result of would, finding their pain suffering for and passion prejudice. appears "It the dif- most, $276,000 be sum conservative —a weight ferences are occasioned to light in findings. of the trial court’s given competent be various of calculation The trial reached damage court a assess- damages. suggest nothing There is to $210,000 wages, ment of for lost future run-away was a either or unreasonable which sum on was based the court ascrib- jury. Accordingly, I the majority concur in ing a impairment rating to 50% Sanchez opinion. (there is in support- no evidence the record $5,250 BAKES, Justice,
ing dissenting part: such in rating) multiplying a (50% $10,000 of yearly earnings) Sanchez’s Huntley’s opinion attempts Justice to by forty years expectancy. future work place unnecessary an unwarranted and conflicting There presented evidence gloss in on the standard contained I.R.C.P. regarding ability repatriat- Sanchez’s to be 59(a)(5) awarding new trials based on force, ed into the work which damages. some of inadequate In so excessive doing, opinion disregards makes it the clear doubtful Sanchez ever lan could 59(a)(5) guage of Rule and our decision in successfully repatriated, given his limit- Finch, 620, 603 v. P.2d Dinneen background present ed educational ina- Quick (1979),recently in reaffirmed v. bility physical to handle kind. labor of Crane, Ill Idaho presented Evidence to Dr. analysis The result is a less than clear support up Ben-Zion to finding would applied by to be trial the standards courts $770,000 (This wages. fig- future lost evaluating trial in motions for new under $330,000 ure includes added due to 59(a)(5). written, As the Court’s I.R.C.P. factor,” “age also, earnings part, and is in opinion only confuse bench and bar will impairment rating based on a San- 70% alike. chez, Tables.) taken from VA Medical the trial court not err in I believe did Additionally, appears the trial court or, the remittitur in the alterna- granting totally presented have discounted evidence tive, Accordingly, judg- trial. a new finding which support would orders of the district should ment and for loss of services. be affirmed. household
I vary with the factual context of each judge’s case and the trial sense of fair- opinion purports Court’s rely on justice. Frequent ness and character- Quick Crane, the case of supra, v. izations have included the support idea that the present its decision in the case. It disparity Quick must ‘shock opinion assumes that our in the conscience’ of has standard, altered the changing Dinneen it or lead him to conclude “appearance passion from an preju- that it would be ‘unconscionable’ to let dice” test to a “shocks the conscience” test. award stand as the set However, nothing Quick there is in the (Citations omitted.) it. These character- opinion supports assumption. which izations, course, do little more than Quick nothing did more than reaffirm our restate the judge’s trial discretionary Finch, holding in supra, Dinneen v. stat- perspective are, nonetheless, but fre- ruling upon that “in a motion for a new quently employed in other areas of the 59(a)(5)] premised upon Rule [under and, therefore, law may be useful to the inadequate damages, or excessive the rule Quick judge.” Crane, supra v. a trial court must follow set forth 769-70,727 1197-98, (em- Idaho at P.2d at Finch,____” 111 Idaho at Dinneen phasis added). Quick opinion at 1196. Our 727 P.2d Dinneen, directly from the fol- quotes, then language in As the the above statement lowing language: indicates, Quick opinion way no changes or modifies the Dinneen standard. prem- “Where a motion for a new trial is Dinneen, As we held and reaffirmed inadequate damages,
ised on
or excessive
Quick, once such discretion is exercised
weigh
the trial court must
the evidence
appeal
merely
is limited
compare
jury’s
and then
award to
our review
given
determining
what he would have
had there been
that discretion
whether
not
great
If
jury.
disparity
is so
has been abused.
appears
it
to the trial court that
opin-
Herein lies the error in the Court’s
given
award
under the
influence
Although
purport-
ion
case.
prejudice,
ought
*17
or
the verdict
ing
by
to abide
the Dinneen standard of
proven
not stand.
It need not be
that
i.e.,
discretion,
appeal,
review on
abuse of
passion
prejudice
in
there was
fact
or
nor
opinion
in
the
fails to indicate what manner
necessary
point
is it
to
to such in the
judge
present
in
the trial
the
case has
appearance
record. The
of such is suffi-
in ruling
his discretion
on a motion
abused
A
cient.
trial court is not restricted to
59(a)(5). The
for new trial under I.R.C.P.
ruling
inadequate or
a verdict
excessive
(Citation omitted.)
judge
finds
Court never once
that the trial
‘as a matter of law.’
Additionally,
such a find-
the rule that a verdict will
abused his discretion. Absent
supported by
ing,
not be set aside when
sub-
I
to
on what
fail
see
basis this Court
conflicting
has no
judge’s
stantial but
evidence
trial
may reverse the
considered
ruling
application
upon
to a trial court
a
proceed-
decision and remand for further
(Citations omit-
motion for a new trial.
ings. The decision to reverse and remand
ted.)”
625-626,
“How substantial
P.2d at 1241.
as
at
language
explains,
express
the
of
impossible
is
formulate with
de- Dinneen
59(a)(5)
“passion
necessarily
adopts the
or
gree
accuracy.
It will
I.R.C.P.
of
standard,
vary
“it will
prejudice”
necessarily
not a “shock the con-
that
with
fac-
the
or
test for deter-
science”
“unconscionable”
tual
of each
context
case and the trial
mining
disparity
whether the
between the
judge’s
justice,”
sense of
and
fairness
by
judge
Quick
award determined
at
Given
Dinneen standard and this
Rowett)
Quick
(Judge
explicit holding
Crane,
merely
“the trial court
in
sub-
Court’s
v.
amount,
by way
stituted its
reached
supra,
award
that
substantial
differ-
“[h]ow
calculation,
of
ence
and
a different method of
assessment
[between
damages]
impossible
jury.”
absolutely
of
is
that
There is
noth-
must be
to for-
of
any degree
accuracy,”
support
mulate with
in the record to
that statement.
just
analysis
year,
applied
1.
In two cases decided in
the last
court’s Dinneen
which neither
277,
Reynolds,
Black v.
109 Idaho
Black v. P.2d comprehend dard. It difficult to how at 388. case, given Court in trial Vannoy In this Court affirmed the trial judge’s application detailed .of Dinneen to 59(a)(5) granting court’s of Rule motion for case, facts this can hold has that he or, alternative, new trial remittitur his requiring abused discretion reversal portion damages. of a of the Vannoy The and remand for further consideration. court, in making trial analysis, his Dinneen The result reached the Court in the stated: present case, contrasted with the result “The Court finds that the actual evidence Reynolds, supra, reached Black v. introduced on loss of consortium was Quick Crane, supra, conflicting v. sends sketchy very justify would not an signals to bench bar regarding alike damages $74,- award of in the amount of governing the rule motions for trial new case, If sitting 895.81. I were on the I 59(a)(5). Analyzing under cases these four $10,- damages would have awarded together Black, Vannoy, Quick, and I 000.00. feel jury’s decision — incongru Sanchez — we have arrived at the weight. also deserves some Accordingly, ous if grant judge grants
I result that a trial will defendant’s Motion for a 59(a)(5) giving any Trial denies a plaintiffs agree New unless re- motion without so, damages doing duce the awarded to reasons he will be Nadine reversed. $20,- Quick Crane, Vannoy However, loss of supra. consortium to v. if he too his analysis becomes detailed in he like 000.00.” Galey. wise will be reversed. Sanchez v. Vannoy case is similar to Black v. gives if only But he a little bit of reason Reynolds, supra, though even ing, becoming without either too detailed or Vannoy court in went further and indi- brief, too this Court not will assume cated much he how would have awarded trial has “eschewed” his fact, Dinneen had he been the finder of duty, Reyn and we will affirm. something which Black v. the court in Black did not However, olds, supra. do. v. supra; Vannoy Uniroyal, judge Vannoy trial did go Judge Rowett, surely not as far as The bar and the trial courts will judge in additionally understanding this who have a time de stated difficult our good conscience, that he not “in today could cision come this case. $400,000.00
within jury’s of the verdict.” Apparently in Vannoy was II Judge saved error by repeating from not I dissent Part also from VIII of Rowett’s statement that he could “in not ” opinion regarding admissibility Court’s good $400,000.00 conscience come within status. appellant’s alienage Citing jury’s verdict. That makes it all case in Grigg Court’s Patino & more difficult understand how the Court *20 Farms, today reversing 97 Idaho 542 P.2d justify Judge can Anderson Rowett’s (1975), handling majority the the holds that was of motion for new 1170 it trial and the to remanding to whether not error for trial court determine he was reversible by any “either jury’s preclude making shocked or defendants from award earning regarding particular, San- statements before the concerned—in future However, permit Pati- To as was alienage capacity. plaintiff, chez’s status. hold; anything, present if it in the introduce evi- case does not so done to no regarding earning capacity just opposite. for In Patino dence future stands regard- entirely upon wages that a non-alien district court had admitted evidence based status, alienage precisely con- ing plaintiff’s earns the United States is Mexican of forth in Rind- illegal presence trary his in the United to the rule law set is, States, prob- damages jury on the That of and instructed the lisbaker. awards . conjec- plaintiff being speculation on ability of the able to lawful- must not be based present case ly immigrate to the There ture. Given the fact in the United States.2 citi- assignment appeal in States of error on that Sanchez was not a United was zen,3 on to as- regarding speculation the disclosure of it borders mere Patino capacity alienage jury. earning On that his future would plaintiff’s status to sert similarly employed contrary, equivalent of the trial to the correctness be Respondent was as- should court’s admission of that evidence United States citizens. sumed, permitted con- cross examine only and the error raised was have been to testimony expert regarding No. 29 in his cerning plaintiff’s an error in Instruction earning capacity the limita- future based which the trial court stated that of Sanchez’s illegal an Hemisphere immigration, upon the fact that is tion on Western Sanchez Mexico, including provides The no ba- into the United States alien. Patino decision when, fact, precluding it from disclos- five hundred thousand sis for defendants was only twenty ing alienage thou- to the was one hundred and Sanchez’s status concerned. damage The that the insofar as the issue is sand. Court Patino stated minimum, in not “incorrectly court erred court’s instruction stated At a trial ex- permitting opportunity into this counsel immigrants the number of allowed to re- annually appellant regarding Hemi- his intent country from Western amine countries,” regardless er- country found that “this main sphere but deportation. prejudicial.” only The relevant ror was not threat statement of law contained in the Patino require This issue alone is sufficient case is con- case insofar by given and has been short shrift reversal following language. is the “It is cerned present case. opinion in the the Court’s damages for loss of earn- well settled however, error, was effect of this ings profits with reason- must be shown mitigated by court’s order- largely certainty compensatory able and the upon refusal a new trial conditioned conjec- speculation awards based damages by plaintiff of the remittitur of a ture will not be allowed. Rindlisbaker $950,000. million The trial from $1.35 (1974).” Wilson, 519 P.2d regarding fully San- informed court Farms, Grigg Patino v. & Anderson status, significant por- chez’s alien 1173. Idaho P.2d at jury’s reduction award tion making his by the trial alienage rele- court is of doubtful
While status concerned, attributed it determination liability vance insofar as earning If the Court capacity. damages are to future clearly is relevant insofar as may you take further instructed that given reads as “You are 2. Instruction No. 29 the court determining eco- facts into account in follows: these loss, any, if if the Plaintiff suffered nomic judicial takes "You are instructed that the Court applicable.” you these facts find there is limitation notice that no numerical may lawfully enter the number of aliens who candidly to the counsel admitted Sanchez’s permanent United States Mexico for the residence, from undoc- that Mr. Sanchez was an numerical limita- but there is a subject deportation in the fol- alien year umented per tion of five hundred thousand aliens immigra- lowing Sanchez’s statement: “Lorenzo immigrants from West- to the United States he been countries, had status a basis ... Hemisphere Mexi- tion which includes ern deportation.” apprehended ... his co.
631
today
affirming
disparity
passion
were
trial
court’s order
is
result of
award
or,
prejudice.
granting
of remittitur
the alternative
trial,
a new
the failure of the trial court to
urge
Secondly, respondents
error in our
permit
alienage
evidence of Sanchez’s
sta-
alienage
treatment of the
of Sanchez’
issue
tus would constitute harmless error.
If on status,
is
asserting
our decision herein
that
grant
remand the trial court
to
determines
contrary
required
v.
to that
Patino
trial,
plaintiff's
a new
then
of the
evidence
Farms,
251,
Griggs & Anderson
97 Idaho
alienage status should
admitted in the
(1975).
doubtedly be moot in the event of newa SHEPARD, J., concurs. trial into passage since the law on Novem- 5,1986,
ber Immigration Reform and 1986, Control Act Public Law 99-603. ON DENIAL OF PETITION FOR Secondly, passage of that Act would REHEARING alienage make submission of status HUNTLEY, Justice. jury earning a for consideration of future capacity speculative even more than it Rehearing by respon- The Petition for would prior passage have been to the objections dents asserts several to the that Act. and foregoing opinion, upon above two of we which comment. Immigration Reform and Control provides legalization Act of 1986 for a pro- First, raised, objection apparently gram for aliens undocumented who entered picking up on a statement the dissent of country prior 1982. Bakes, opinion goes Justice that our be- yond working Mr. been standard of Sanchez had in this review established in Quick Crane, country years prior for six subject 727 to the P.2d (1986) which, Finch, and accident coincidentally, Dinneen v. occurred Idaho Such is an majority
incorrect characterization of the most, At in the overall context of this opinion. permit testimony the failure to and alienage consideration of the status in re- opinion adopts earlier Our the standard gard Quick was harmless error. Par- expanding v. Crane without it in ticularly being so since this matter is sent respect is, any whatsoever, that back to the district court to reconsider the standard is whether court con- granting denying a new trial a new jury cludes the award of the was the plaintiff accepting conditioned on the product prejudice. The refer- remittitur. Quick ences “shock conscience” “unconscionable,” approved which we DONALDSON, J., concurs. our opinion, of in earlier are as follows: Justice, BISTLINE,
“Frequent concurring in the characterizations have includ- HUNTLEY, J., opinion peti- ed the idea denial of disparity must rehearing. tion for ‘shock conscience’ of the trial or lead him to conclude that it would be Even without the benefit of the Court’s ‘unconscionable’to let the award Patino, prior opinion in it seemed to me Quick, stand as the it.” set entirely that the district court was correct Idaho 1197-98. P.2d in not defense allowing the to make of large These references do establish nationality not new Sanchez’s issue which test, merely standard or sugges- but are would distract the from the true nuts of measuring tions injured sticks bolts of the case. Sanchez was might determining Idaho, utilize in whether it was laws of Idaho to *22 subjected,
which he was
as was also his
or an “unconscionable” test for determin-
employer,
ing
injured.
when he was
whether a motion
pursu-
for new trial
59(a)(5)
ant to I.R.C.P.
granted.
should be
apparently
The trial court
also could not
The majority,
opinion
in its
on denial of
see
considering
valid reason for
wheth-
petition
rehearing,
for
recognizes
now
er
injured
the
workman in this case was
accepts
position
the
taken in the dissent on
Ireland,
India,
from
Japan,
from
from
from
majority opinion
this issue. The
on denial
Australia, or from
History
Mexico.
has
petition
rehearing
for
corrects the
taught us all
fifty
well that these
United
opinion by
Court’s initial
holding that the
melting pot
States are a
for all nationali-
Finch,
standards established in Dinneen v.
ties.
supra,
determining
are the standards for
may
It
I
my reading
be that
am remiss in
59(a)(5)
when a
motion for new trial should
abilities,
not,
perhaps
my
but if
then
in
granted.
ability
comprehend.
get
What I
out
aof
However, what remains unanswered in
readings
number
of Patino is that Jus-
present
then,
the
why
or on what
Donaldson, writing
tice
for a unanimous
basis the majority reverses the trial court’s
Court, held
jury
properly
that the
in-
determination that a new trial should be
formed concerning the laws of the United
granted in the
plaintiff’s accept-
absence of
governed
wages
States which
minimum
in ance
portion
of a remittitur of a
the United States —not Mexico or some oth- damages
Finch,
awarded.
In Dinneen v.
country
might
er
to which Patino
later
supra,
expressly
we
held that the standard
move.
appeal
of review on
of a trial court’s deci-
granting
denying
sion
or
a motion for new
BAKES, Justice, dissenting on denial of
59(a)(5)
trial under
is whether the trial
petition
rehearing:
for
court has abused its discretion. We recent-
ly reaffirmed that in
Reynolds,
Black v.
I
277,
(1985).
109 Idaho
migrant play calls all into most II laws, immigration including the nu 1); immigrants Id., merical limitations on opinion petition on denial of for re- hearing 245A(a)(4)(A); seriously holding also errs its § However, 245A(d)(1). expressly provides 1. The 1986 act nu- § nowhere does the act express regarding merical limitations contained in 8 such an U.S.C. contain exclusion ad 1151, 1152, apply adjustment justment temporary §§ not do resident status. State v. status, Act, Michael, permanent (1986) status to resident P.2d 405 (3) any he has not been convicted of misdemeanors;
felony or three Id. 245A(a)(4)(B); and
§
(4) registered that he is under the Mili- Act, required
tary Selective Service if so
under that act. (1) indicates,
As the first number above is,
requirement obviously, that must be met timely filing application of an for ad-
justment requirement status. This
alone is sufficient to defeat assertion Nothing
of mootness. before this Court *25 application
indicates that such an has been appli-
filed Sanchez or even that such an entirely
cation will be filed. The record is
lacking any assertion Sanchez that he
desires or intends to become a United permanent citizen or
States even a resident country.
in this Without evidence regarding
the record conduct Sanchez’s States, impossible
while in the United it is qual-
to determine whether or not he would
ify Any under the 1986 act. determination require mootness would Court
engage in very type speculation majority strongly urges
which so analysis
Court to eschew under its
issue. Ante at
SHEPARD, C.J., concurs.
Shirley LAURANCE, Plaintiff-Appellant, LAURANCE,
Dean
Defendant-Respondent, Brown, Intervenor-Appellant.
Randall
No. 16259. Appeals
Court of of Idaho.
March (“the alterius”). specific thing implies mention of one sio another; expressio exclusion of est exclu- unius