Petition — Strickland v. Roosevelt County Rural Electric Cooperative

Office-Supreme Court, U.S.

RiLED

MAY 9 1963

82-1847

ALEXANDER L. STEVAS,

CLERK

IN THE

Supreme Court of the United States

1982-1983 Term

No.

RHODA STRICKLAND, as Personal

Representative of Joseph Strickland,

deceased,

Petitioner,

Vs.

ROOSEVELT COUNTY RURAL ELECTRIC

COOPERATIVE, CYRIL E. CARTER, SECURITY

INSURANCE COMPANY OF HARTFORD,

Respondents.

ON WRIT OF CERTIORARI TO THE

NEW MEXICO COURT OF APPEALS

PETITION FOR A WRIT OF CERTIORARI

EUGENE E. KLECAN

520 Sandia Savings Building

Albuquerque, New Mexico 87102

(505) 243-7731

Attorney for Petitioner

QUESTIONS PRESENTED

1. Does the 14th Amendment, U.S. Constitution

demand the payment of pre-judgment interest to the

judgment creditor?

2. Is the denial of pre-judgment interest a discrimina-

tion and a denial of Constitutional equal protection of

the laws in New Mexico wrongful death case?

3. Is State of New Mexico ‘‘judicial discretion’’

awarding or denying pre-judgment interest a denial of

Constitutional government and an assertion of absolute

judicial autocracy?

4. Is it a denial of equal protection and due process

for the State of New Mexico to provide specifically and

solely how damages for Wrongful Death shall be proven

and when proof as demanded is made and no contradic-

tory evidence is offered to place on the Plaintiff a ‘‘burden

of persuasion’’ to convince the jury to allow the sole

amount in evidence?

5. Is the ‘‘burden of persuasion’’ a discrimination

against a plaintiff and a lack of due process and a denial

of equal protection?

6. Do 14th Amendment violations which could be

litigated in Federal Court under 42 U.S.C. § 1983 have

a right of review in the Court even though the actions

came up through State Judicial Channels and where the

Constitutional violations occurred in the course of the

State Judicial proceedings in a Wrongful Death case?

7. Is there really a viable 14th Amend. protection for

State Court violations (Color of Law)?

Pt NR i ai li aa

8. Should those who exhaust State remedies be sub-

jected to an ‘‘aboslute discretion’’ for certiorari here?

9. Does the payment of taxes to the Federal Govern-

ment for support and maintenance of the Central Govern-

ment in Washington entitle the individuals to something

more than an ‘‘absolute discretion”’ to review 14th Amend.

violations by the State government?

10. Should liability insurance companies be permitted

to continue to act against public policy and violate the

fundamental meaning of ‘‘interest’’ as earning power of

money and continue violating the 14th Amend. in doing so?

11. Does the 14th Amendment, U. S. Const., protect a

Party from a denial of a New Mexico Constitutional right

to have the liability carrier named.

TABLE OF CONTENTS

QUESTIONS PRESENTED

OPINIONS BELOW

PARTIES

TABLE OF CONTENTS

TABLE OF CASES & AUTHORITIES

JURISDICTION

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION

APPENDIX A

Page

IT]

TABLE OF CASES AND AUTHORITIES

JASES:

Alto Village Services Corp. v. N.M. Public Service

Comm., 92 N.M. 323, 587 P.2d 1334 (1978) 22, 23

Erie Ry v. Tomkins a

Hellelson v. Republic Insurance ( '0., 96 N.M. 36, 38,

627 P.2d 878 (1981) 9

In Re Air Crash, 644 F.2d 633 10, 11, 14, 15

Lahr v. Lahr, 82 N.M. 223, 478 P.2d 551 (1970) 25

Laudenberger v. Port A uthority, 436 A.2d 147, 156

(Pa. 1981) 17

Maurer v. Thorpe, 95 N.M. 286, 621 P.2d 503 (1980) 26

Miller v. Robertson, 266 U.S. 243, 69 L.Ed. 265, 275

(1924) 13

Morton Grove Park District v. American National

Bank, 78 Tll.2d 353, 399 N.E.2d 1295 (1980) 11,13

National Air Lines v. Stiles, 268 F.2d 400, 404 12,13

Rosen v. U.S.A., 288 F.2d 658 (1961) (CCA 3rd) 13

Samen Corp. v. S. 8S. Rivadeluna, 277 F. Supp. 943

(i567)... : 13

Shaffer v. Kelton, 95 N.M. 182, 619 P.2d 1226 (1980) 8, 14

State v. Phillips, 470 P.2d 266 . 14,15

State Bank v. Hermosa, 30 N.M. 566, 240 P. 469

(1925) 8,19

Strickland v. Roosevelt County Rural Electric Coop.,

657 P.2d 1184 ) 27

Turrie Ha v. Wyche, 54 N.M. 5, 212 P.2d 1041 (1949) 24

Varney v. Taylor, 77 N. M. 28, 34-35, 419 P.2d 234

(1966) .. , a 21, 22, 23, 24

West v. Harris, 583 F.2d 873 (Sth Cir., 1978) 15

ili

CONSTITUTIONAL PROVISIONS:

United States Constitution, Amendment 14 8, 9, 10, 13

New Mexico Constitution, Art. II, See. 26

STATUTES:

41 U.S.C., See. 1983 s

N.M. Rules of Civil Procedure, Rule 68 18

OTHER AUTHORITIES:

American Bar Association Journal, Vo 6a,

January, 1983 17

American Journal of Trial Advocacy, Vo. 5:81,

p. 81-93 : seals 18

U.J.I. 14.17 23, 24

IN THE

Supreme Court of the United States

1982-1983 Term

No.

RHODA STRICKLAND, as Personal

Representative of Joseph Strickland,

deceased,

Petitioner,

vs.

ROOSEVELT COUNTY RURAL ELECTRIC

COOPERATIVE, CYRIL E. CARTER, SECURITY

INSURANCE COMPANY OF HARTFORD,

Respondents.

ON WRIT OF CERTIORARI TO THE

NEW MENICO COURT OF APPEALS

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Rhoda Strickland, as Personal Represen-

tative, petitions for a Writ of Certiorari to review the

Opinion of the New Mexico Court of Appeals entered on

February 7, 1983.

QUESTIONS PRESENTED

1. Does the 14th Amendment, U.S. Constitution

demand the payment of pre-judgment interest to the

judgment creditor?

2. Is the denial of pre-judgment interest a diserimina-

tion and a denial of Constitutional equal protection of

the laws in New Mexico wrongful death case?

3. Is State of New Mexico ‘‘judicial diseretion’’

awarding or denying pre-judgment interest a denial of

Constitutional government and an assertion of absolute

judicial autocracy?

4. Is it a denial of equal protection and due process

for the State of New Mexico to provide specifically and

solely how damages for Wrongful Death shall be proven

and when proof as demanded is made and no contradic-

tory evidence is offered to place on the Plaintiff a ‘*burden

of persuasion’? to convince the jury to allow the sole

amount in evidence?

5. Is the ‘“‘burden of persuasion’’ a discrimination

against a plaintiff and a lack of due process and a denial

of equal protection?

6. Do 14th Amendment violations which could be

litigated in Federal Court under 42 U.S.C. § 1983 have

a right of review in the Court even though the actions

came up through State Judicial Channels and where the

Constitutional violations occurred in the course of the

State Judicial proceedings in a Wrongful Death case?

7. Is there really a viable 14th Amend. protection for

State Court violations (Color of Law)?

2

8. Should those who exhaust State remedies be sub-

jected to an ‘‘aboslute discretion’’ for certiorari here?

9. Does the payment of taxes to the Federal Govern-

ment for support and maintenance of the Central Govern-

ment in Washington entitle the individuals to something

more than an ‘‘absolute discretion’’ to review 14th Amend.

violations by the State government?

10. Should liability insurance companies be permitted

to continue to act against public policy and violate the

fundamental meaning of ‘‘interest’’ as earning power of

money and continue violating the 14th Amend. in doing so?

11. Does the 14th Amendment, U. 8. Const., protect a

Party from a denial of a New Mexico Constitutional right

to have the liability carrier named.

OPINIONS BELOW

The pertinent portions of the Opinion from the New

Mexico Court of Appeals appear in the Appendix B. The

full Opinion is reported in 657 P.2d 1184. The Judgment

of the trial court and pertinent portions of a separate

Order of the trial court denying prejudgment interest

appear in Appendix G.

PARTIES

Parties to the proceeding in the court whose judgment

is sought to be reviewed were Rhoda Strickland, Roosevelt

County Rural Electric Cooperative, Cyril EK. Carter, and

Security Insurance Company of Hartford.

JURISDICTION

The Mandate, Judgment and Opinion of the New

Mexico Court of Appeals was filed on February 7, 1983.

The original Opinion by the New Mexico Court of Appeals

was issued on December 9, 1982. A timely Motion for Re-

hearing was denied by the New Mexico Court of Appeals

on December 22, 1982. A timely Petition for Certiorari

to the New Mexico Supreme Court was filed on January

11, 1983, a bare denial of which was filed in the Court

of Appeals on February 7, 1983. On the same date, Feb-

ruary 7, 1983, the Judgment, Mandate and Opinion of the

Court of Appeals was issued. Appendix

A Motion for Stay of Mandate was filed in New

Mexico Court of Appeals but denied on February 10, 1983.

The case was returned to the District Court for Bernalillo

County, New Mexico and received there on February 11,

1983. A Motion for Judgement on the Mandate has been

filed there. A hearing on said Motion has not yet been

held.

This Court has jurisdiction of this cause under 28

U.S.C. § 1257, as this is a Petition for Certiorari from the

aforesaid Judgment, Mandate and Opinion of the State

of New Mexico Court of Appeals.

Assertions of Federal Jurisdiction below appear in

App. C & E.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

Amendment 14, U.S. Constitution, Section 1. Citizens

of the United States. All persons born or naturalized in

the United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State wherein

4

they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States: nor shall any State de-

prive any person of life, liberty, or property, without

due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

Amendment 14, U.S. Constitution, Section 5. Power

to enforce amendment. The Congress shall have power to

enforce, by appropriate legislation, the provisions of this

article.

Article II, Sec. 18, New Mexico Constitution: No

person shall be deprived of life, liberty or property with-

out due process of law; nor shall any person be denied

equal protection of the laws. Equality of rights under

law shall not be denied on account of the sex of any

person. The effective date of this amendment shall be

July 1, 1973. (As amended November 7, 1972).

STATEMENT OF THE CASE

Plaintiff Rhoda Strickland brought this wrongful

death action in 1977 in Bernalilio County District Court

as the Personal Representative of the estate of her hus-

band, Joseph Kay Strickland, deceased. (ke. I). Jee

Strickland died on September 8, 1976, at the age of 27, on

the farm of Defendant Cyril E. Carter which is located

near Clovis, New Mexico. (Tr. 2). Joe Strickland was a

truck driver for Blakley & Sons trucking company ane

was delivering a truck-load of soil conditioner to the ( Carter

farm at the time of his death. (Tr. 753-4, 761). He died

by electrocution when the truck he was Stein came in

close proximity to the overhead electrical wires installed,

repaired and maintained by Defendant Roosevelt County

Rural Electric Cooperative. (Tr. 773, 1044, 1059, 1060).

D

At the time of his death he had a werk life expectancy

of 34.25 additional vears. (Tr. 827).

Security Insurance Company of Hartford paid work-

men’s compensation benefits to Rhoda Strickland, to Joe

Strickland’s natural son and to his step son, for this

death which occurred during employment. After Plaintiff

brought this wrongful death action, Security moved to

intervene. (Tr. 67). Prior to trial Plaintiff Strickland

filed a Motion to name Defendant’s insurers as party-

defendants because of the presence of Security Insurance

Company as a Plaintiff. (Tr. 422). That Motion was

denied by the trial court (Tr. 441) and the Court of

Appeals affirmed that decision.

The case was tried to a jury on September 29, 1981

through October 3, 1981, with Judge Harry E. Stowers,

Jr., presiding. The evidence as to damages was two-fold:

1) that Joseph Strickland experienced pain and suffering

before he died (Tr. 801, 942) and 2) that the present

monetary value of his life was between $325,000 and

$372,000. (Tr. 836-39). The only evidence as to the eco-

nomic loss came from Melissa Patterson, the economist

called as a witness by Plaintiff: Defendants did not

present any economic evidence to refute the damage figures

testified to by Melissa Patterson. Following the criteria

established in Verney v. Taylor, 79 N.M. 652, 448 P.2d

164 (1968) for measuring economic loss due to wrongful

death, Melissa Patterson testified that the economic loss

resulting from Joe Strickland’s death was between $325,-

000 and $372,000 (Tr. 836-39). The economist testified

that the future lost earnings, after deducting taxes and

personal maintenance, was $321,703 if the amount was dis-

counted at 10% and was $274,891 if discounted at 12%.

(Tr. 836-7). In addition the past wage loss, for the 5

6

vears between the death and the trial, was ecaleulated to

be $50.000 (Tr. 839). App. H.

In addition to the economic loss there was also un-

disputed testimony of pain and suffering experienced by

Jo Strickland before he died. The pathologist testified

that the burns on decedent caused by the electrocution

would be painful and that the interruption of the heart

heat by the electrocution would cause a severe crushing

chest pain. (Tr. 801). Defendant Carter testified that after

he was electrocuted, Joe Strickland fell to the ground,

face down and yelled several times (Tr. 938, 942). Joe

Strickland had a very fast pulse and was obviously

alive when Defendant Carter left him. (Tr. 942). Joe

Strickland’s death was not instantaneous and he did ex-

prience pain and suffering before he died.

Despite the evidence of pain and suffering and the

evidence of an economic loss of over $300,000, the jury

returned a verdict of only $105,000. The jury’s verdict

was that Defendant Rooseveit County Rural Electric

Cooprative alone was liable for Joseph Strickland’s

death. (Tr. 567). The jury found that Joe Strickland was

not contributorily negligent and that Defendant Carter

was not negligent. (Tr. 567). Plaintiff made a motion

for an additur or in the alternative for a new trial

against Defendant Roosevelt County Rural Electrie Coop-

erative on the issue of damages. (Tr. 575). That Motion

was denied by the trial judge (Tr. 591) and the Court

of Appeals affirmed. Petitioner claims error because of

the Court of Appeals’ refusal to grant a new trial because

of the inadequate damages awarded. App. G.

Plaintiff also moved after trial for an order allowing

prejudgment interest and requested that the trial court

eliminate or reduce the amount to be reirabursed to the

7

workmen’s compensation carrier. The trial court denied

those motions. (Tr. 612). The court entered Judgment

on February 1, 1982, in favor of the Plaintiff against

Defendant Roosevelt County Rural Electric Cooperative

in the sum of $105,000 and in favor of Defendant Carter.

(Tr. 614). The Judgment further stated that interest was

to accrue from the date of the Judgment and that Security

Insurance Company was to be reimbursed in full. (Tr.

615). The Court of Appeals «! ‘rmed those decisions of the

trial court. App B, G.

REASONS FOR GRANTING THE WRIT

Denial of prejudgment interest to Plaintiff in a

Wrongful Death case is a taking of property without due

process. It is a denial of Equal Protection. It is a denial

of Privileges and Immunities. /t is discriminatory state

action. It violates 14th Amend. and 42 U.S.C. § 1983.

1. Prejudgment interest:

The Court of Appeals’ Opinion denying prejudg-

ment interest is in conflict with State Bank v. Hermosa,

30 N.M. 566, 240 P. 469 (1925). At page 596, the Court

in State Bank held:

‘‘On general principles, once admitted that inter-

est is the natural fruit of money, it would seem that

wherever a verdict liquidates a claim and fixes it as

of a prior date, interest should follow from that date.’’

This Opinion is also in conflict with Shaffer v. Kelton, 95

N.M. 182. 619 P.2d 1226 (1980) wherein this Court stated,

at 187:

‘‘In New Mexico, damage awards should fully

compensate the injured party, whether the action is

one in contract or in tort. Terrell v. Duke City Lumber

Company, 86 N.M. 405, 524 P.2d 1021 (Ct.App. 1974).

8

‘‘[p]laintiff seeks interest as damages for the

breach of a contractual duty and the injury caused

by deprivation of the promised performance. . . .

Simple interest is allowed as a means of estimating

these probable gains and as compensation for their

prevention.

‘‘(a) Where the defendant commits a breach of

contract to render a performance the value of which

in money is ascertainable by mathematical calculation

from a standard fixed in the contract or from estab-

lished market prices of the subject matter, interest is

allowed on the amount of the debt or money value

from the time performance was due. . . . [iln our

judgment, the instant case falls under the provisions

of subsection (a) and interest should be awarded as

a matter of right.

This Opinion is further in conflict with this Court’s Opin-

ion in Hellelson v. Republic Insurance Co., 96 NM. 36, 38,

627 P.2d 878 (1981) where the Court stated:

‘*While interest could not be claimed as a matter

of right in the absence of an express agreement at

2arly common law, according to the modern viewpoint,

there are many circumstances where interest can be

so claimed, 45 Am.Jr.2d Interest and Usury 634 (1969).

We think this is an appropriate situation within the

latter rule.’’

The Court of Appeals Opinion here is in conflict with the

cited decisions when it states, at page 10.

‘‘{t{he view most favorable to plaintiff is that

prejudgment interest in a wrongful death case is a

matter of discretion.’’

The issue of prejudgment interest also involves a

significant question of law under the New Mexico Consti-

tution, 14th Amendment. As the cases discussed in the

9

argument on prejudgment interest hold, prejudgment in-

terest is mandatory because it is money which belongs

to the prevailing plaintiff. Since that is so, if is an un-

constitutional deprivation of property not to give a plain-

tiff the money which she owns. It is also an unequal

protection of the law because plaintiffs in wrongful death

cases are treated unequally in comparison to other owners

of money.

This issue of prejudgment interest further presents

an issue of substantial public interest which should be

determined by the Supreme Court. As discussed more

fully in the argument section, prejudgment interest should

be awarded in wrongful death cases in order to induce

defendants to make timely, reasonable offers of settlement.

If prejudgment interest were mandatory, defendants and

insurance companies would not have the incentive they

now have to prolong litigation. Prejudgment interest

would therefore help alleviate court congestion and delay.

In Re Air Crash, 644 F.2d 633, is based on an analysis

of the Illinois Wrongful Death Statute. All prior Tlinois

decisions indicated ‘‘no’’. The 7th Cireuit simply went

against prior precedent. In doing so Frie Ry v. Tompkins,

must have been ignored. In interpreting the MTlinois

Wrongful Death all the court concluded that full compen-

sation was not paid to the survivors and therefore pre-

judgment interest was necessary in order to give the

survivors their just rights. The 7th Cireuit did not dis-

cuss Federal Constitutional rights. However, a higher

principle of decision than interpretation of an Tllinois

Statute is necessarily involved. We submit that it is

the 14th Amend., U.S. Const. that no person should be

deprived of his property without ‘‘due process’’ of law.

The 7th Cirenit’s examination of what the beneficiaries

received showed that this was inadequate without pre-

10

judgment interest. In Re Air Crash, p. 643, supra. The

conclusion seems inevitable that the decision was on con-

stitational grounds as the 7th Cireuit had no authority to

refuse te apply Illinois law when Illinois has spoken on

ithe subject which they had. Klepser vr. Std. Service Refuse

Disposal Co. cited in In Re Air Crash, supra. In Re Air

Crash, supra, goes to other Illinois eases on Wrongful

Death for support, e.g. Morton Grove Park District v.

American National Bank, 78 Ul.2d 353, 399 N.K.2d 1295

(1980) and in doing so went to a constitutional principle

‘so the county treasurer’s keeping the interest earned

constituted a taking of private property for public use.’’

This rational is clearly the basis of In Re Air Crash Dis-

aster, supra; and, it is a Constitutional duty. Since the

‘th Cirenit is a Federal Court it must be the Federal

Constitution which was applied. The same basic reason

for prejudgment interest exists in this New Mexico case

viz the award was grossly inadequate. Specifically, dam-

ages on Wrongful Death in New Mexico are economic.

(See App. H_ U.J.I. Instructions). The whole amount

Was subjected to a discount including that amount of

the judgment representing the time between the death

and the payment of the Judgment. Without pre-payment

interest the Wrongful Death beneficiaries were being

deprived of the damages allowed by New Mexico law.

New Mexico does allow damages for the pain and suffer-

ing of the decedent however this could not have been the

subject of a discount for the future because there was no

future here below for the decedent. Therefore, whatever

amount, if any, was included within the Judement for pain

and suffering prior to death was kept from the Plaintiff

and in the pockets of the defendant insurance companies

during the prejudgment period. If we accept the theory

that prejudgment interest is an essential part of a damages

award, then the failure of the State of New Mexico to

1]

allow it would be State action prohibited by the 14th

Amend. If the 7th Cireuit’s reference to a ‘‘condemna-

tion’? award was applied to the Wrongful Death case then

even more clearly is the basis Constitutional ‘‘keeping the

interest earned constituted a taking of private property

for public use.’’ It is true that the defendant in our case,

a Coop supplying electricity is not a ‘‘county treasurer”

and that the Federal Constitutional basis for Morton

Grove v. American National Bank, supra, are different.

Also in Morton, supra, interest was during the appeal

period and the ‘‘award earned $92,357.08". ‘“We hold

that to deprive the owners of these earnings would violate

their constitutional rights.’? A quote from Morton, supra,

vocalizes our position ‘‘The county had the use of the

award money for 30 months. The earnings on the funds

deposited are a mere incident of ownership of the fund

itself’’. P. 1299.

It is a Federal Constitutional issue? There is no

reason why Illinois should grant prejudgment interest

to statutory beneficiaries and New Mexico should not.

New Mexico’s late arrival into the union should not deprive

her citizens of full Constitutional protection.

Basically the real meaning of interest controls and

the answer to the question ‘“‘TO WHOM DOES INTER-

EST BELONG?”’ supplies the answer. A universal eco-

nomic law is superior to any legalistic approach. That

universal law says that Interest is the earning power of

money. It therefore belongs to whoever owns the money.

From the date of the wrongful death, liability attaches

vel non. The money did not belong to the insurance com-

pany in the interim. See Black’s Law Dictionary, Fifth

Edition, 1979, App. F; also, Webster Third New Inter-

national Dictionary, App F; also National Air Lines v.

12

Stiles, 268 F.2d 400, 404; Rosen v. U.S.A., 288 F.2d 658

(1961) (CCA 38rd); Samen Corp. v. S. S. Rivadeluna, 277

F’. Supp. 943 (1967). Miller v. Robertson, 266 U.S. 243,

69 L.Ed. 265, 275 (1924) says ‘‘compensation is a funda-

inental principle of damages whether the action is in

contract or tort’’. Also, ‘‘One who has had the use of

money owing to another justly may be required to pay

interest from the time the payment should have been

made’’,

To deny prejudgment interest is to take one person’s

property and tet another keep it when the money from

which the interest accrued did not belong to him. Insur-

ance companies set up reserves for specific losses. Those

reserves belong to successful claimants. There was insur-

ance for the defendant in this case. We are opposing

x huge vested nationwide interest which pockets money

not their own, and then can delay payment of claims in

order to garner all the more. It is a national scandal and

when the New Mexico State Trial Court and the Court

of Appeals say that it is ‘discretionary’? we make the

14th Amend. enforcement paternalistic.

Plaintiff requested the trial judge to award prejudg-

ment interest (Tr. 595). The trial court denied that

request and entered a Judgment which allowed interest

at 6% only from the date of the Judgment. (Tr. 612).

The Court of Appeals affirmed that decision, holding that

while prejudgment interest in a wrongful death case may

be discretionary, there was no abuse of discretion in deny-

ing prejudgment interest in this case. Recent decisions

from many jurisdictions, discussed below, hold that pre-

judgment interest in wrongful death cases is a matter

of right.

In Shaeffer v. Kelton, 95 N.M. 182, 188, 619 P.2d 1226

(1980), this Court held that prejudgment ‘interest should

be awarded as a matter of right’’ in certain cases.

The Court in Air Crash Disaster Near Chicago, 480 F.-

Supp. 1280, 1284, fn. 4 (N.D. ILL., 1979) dealt with this

precise issue and noted that plaintiffs’ damages in wrong-

ful death cases are reasonably ascertainable. The Court

there stated at page 1285 that ‘plaintiffs’ damages arose

and were calculable as of the date of the crash.’’ The

Court there rejected the contention that prejudgment

interest in wrongful death cases is discretionary. The

Court explained, at p. 1286-1287:

‘‘Like the courts in Stiles and Wetz, we believe that

‘‘fair and just compensation’’ must include interest on

a judgment in a wrongful death case from the date

of death. The losses suffered by the decedent’s sur-

vivors arise at the moment of the decedent's death:

the award of judgment in a subsequent wrongful

death suit is merely an ex post facto determination

of a preexisting obligation. Unless prejudgment in-

terest is available, the survivors suffer the additional

loss of the income from the damages they incurred

on the date of death.

State v. Phillips, 470 P.2d 266, says,

“The law recognizes the earning potential of

money by requiring that an award for future Gam-

ages such as lost future income be discounted to its

present value. It is inequitable to allow a defendant

in a wrongful death action to obtain the benefit of

discounting any judgment to present value while not

allowing a plaintiff to obtain the benefit of prejudg-

ment interest. Under the general rules governing

damages in a wrongful death action, a trier of fact

takes into account postjudgment interest and dis-

counts any judgment to compensate for interest which

14

the plaintiff can earn on it. The benefit to the de-

fendant of this accounting in determining damages is

apparent. However, inequity obviously results if the

defendant gets the advantage of this accounting for

postjudgment interest but the plaintiff does not get the

corresponding advantage of prejudgment interest.’’

Similarly, in West v. Harris, 583 F.2d 873 (5th Cir..

1978) the Court held that prejudgment interest was man-

datory. That case was an action to recover damages

under the National Flood Insurance Act. The Court there

held, at pages 882-883:

‘‘[t]here remains an issue whether an award of

prejudgment interest is required as a matter of fed-

eral law. We conclude that it is.

‘“‘As the common law recognizes in analogous

situations, the only way the wronged party can be

made whole is to award him interest from the time

he should have received the money.

The Court in the Air Crash cases cited State v. Ph illips,

470 P.2d 266 (Alaska, 1970). In that wrongtul death case,

prejudgment interest was held to be mandatory. It ex-

plained its decision as follows, at pages 274-175:

‘Courts in other jurisdictions and commentators

have over the years been moving a vay from medieval

religious notions that all interest was evil toward

recognition by awarding prejudgment interest of the

economic fact that money awarded for any reason is

worth less the later it is received.

‘‘For a cause of action to accrue, one party must

have breached a duty to the other, and the other must

have been injured. At the moment the cause of action

accrued, the injured party was entitled to be left

whole and became immediately entitled to be made

whole. Whenever any cause of action accrues, there-

15

fore, the amount later adjudicated as damages is

immediately ‘‘due’’. All damages, then, whether liq-

uidated or unliquidated, pecuniary or nonpecuniary,

should carry interest from the time the cause of

action accrues.”’

The Court went on to note, at page 273, fn. 27,

that discretion in awarding prejudgment interest is

indefensible:

‘““The Stanford Law Review comment argues that

during the time between accrual of the cause of action

and judgment, plaintiff loses and defendant gains the

use of the money determined to be owing, whether,

no distinction between liquidated and unliquidated

claims is justified. Likewise, no distinction between

pecuniary and non-pecuniary injuries is justified, for

defendant has unjustly enjoyed the use of amount

with which the law requires him to compensate plain-

tiff between accrual of the cause of action and judg-

ment. Discretion of the jury in awarding interest is

indefensible, because it must lead to irrational results;

where prejudgment interest is proper, it should be

mandatory.”’

Prejudgment interest should be awarded in wrongful

death actions in order to fairly and fully compensate

plaintiffs for their loss. As the cases cited above hold,

prejudgment interest is mandatory because it compensates

for part of the damages suffered. There is another policy

reason discussed by many courts and commentators as a

further reason for awarding prejudgment interest in

wrongful death cases - to give defendants an incentive to

make reasonable settlement offers early in the case. By

a rule of civil procedure, trial courts in Pennsylvania are

directed to add prejudgment interest to wrongful death,

as well as other torts, as verdicts. In discussing the pur-

pose of that rule, the Supreme Court of Pennsylvania

16

stated in Laudenberger v. Port Authority, 436 A. 2d 147,

156 (Pa. 1981):

“ft}he plaintiffs have been wrongly injured and

have suffered financial losses because of the defend-

ant’s action. The losses then become exacerbated by

defendants’ refusal to settle the lawsuit in a timely

fashion. The defendants, on the other hand. have

suffered no wrong. They, as the tortfeasor, are not

justly deprived of compensation during the course of

pre-trial delays. On the contrary, it is in the best

interests of the defendants to protract the litigation

process as long as possible, so that they may benefit

from the funds rightfully owing to the plaintiffs. ’’

The most recent comment on awarding prejudgment inter-

est in order to encourage early settlement appears in the

January 1983 issne of the American Bar Association

Journal (Vo. 6a). In a guest article entitled ‘“Court delay:

Some causes and remedies”’ at pages 12-13, the author

notes one reason for court delay:

‘‘Almost all tortious injuries and deaths are

caused by a corporation that may be self-insured or

by an individual covered by insurance. When they

may be liable for a tortious act, a reserve fund of

the estimated cost of disposition of the case is set up

by the corporation or insurance company. This fund

is invested in the highest yielding interest return

available.

‘‘On the other hand, claimants have only a right

of action against the tortious wrongdoer, If suit is

filed and it takes four to five or more years for the

case to be decided, the injured parties get nothing

throughout the delay, while the corporation or insur-

ance company is reaping compound interest. The

longer the delay, the greater the interest return.

‘We must recognize, however, that when a wrong

is committed, as of that instant the tortfeasor or

17

wrouzdoer owes the victim redress - not five years

later. The reserve fund and its interest belong to the

victim. The delayed trial merely determines at a later

date the rightful owner and the monetary extent of

his ownership of the reserve fund.’’

There are two rules in New Mexico which operate to

reduce the amount of a plaintiffs’ recovery: Rule 68 of

the Rules of Civil Procedure and the rule requiring dis-

counting to present value,

Rule 68 provides an inducement to plaintiffs to settle.

It takes something away from the plaintiff that is costs,

to which they are ordinarily entitled, if a trial judgment

is less than defendant’s offer of settlement. Prejudgment

interest could be an equalizing factor by inducing defend-

ants to make reasonable and timely offers of settlement.

The rule requiring discounting of future damages to

present value ensures that plaintiffs will not receive more

than a fair and full recovery. If future loss is discounted,

it is fair for past damages to be appreciated to present

value, by adding prejudgment interest. This unfairness

was diseussed in an article entitled ‘‘Prejudgment Interest

in Personal Injury Litigation: A Policy of Fairness”’

which appeared in Vol. 5:81 of the American Journal of

Trial Advocacy at pages 81-93. At page 89 the authors

stated:

‘‘In summary, what is sauce for the goose is

sauce for the gander. If the defendant, for the pur-

pose of avoiding overpaying the plaintiff, can reduce

the plaintiff’s future losses to their present worth,

even by reference to a speculative rate of interest,

then the court, to avoid underpaying the plaintiff,

should likewise permit the plaintiff to recover the loss

of the use of the money in the past, by reference to

a rate of interest which is not speculative.’’

18

"The case for prejudgment interest in all types of

cases seems well-established in New Mexico. As far back

as 1925 in State Bank v. Hermosa, 30 N.M. 566 (1925), the

Supreme Court of New Mexico not only decided in favor

of prejudgment interest but analyzed the matter, pointing

out the error, injustice and illogie of a position to the

contrary. The court directly met a false concept that had

been used against successful claimants on unliquidated

claims which made a distinction between liquidated and

unliquidated claims, allowing interest in one and denying

it in the other for the simple reason that one was liqui-

dated and the other unliquidated. In refuting the dis-

tinction, the Court, at page 596, quoted from Sedgwick

on Damages 6300:

‘There is no reason why a person injured should

have a smaller measure of recovery in one ease than

the other. There is no reason why the damages to be

paid by the defendant should be mitigated or reduced

by the circumstances that his tort or breach of con-

tract was of such an aggravated or cunningly perfid-

ious character as to make a liquidation of the claim

against him difficult. On general principles, once

admitted that interest is the natural fruit of money,

it would seem that wherever a verdict liquidates a

claim and fixes it as of a prior date, interest should

follow from that date.

The fundamental principle involved is not merely an

abstract legal principal. The fundamental is that the

earning power of money does not belong to the entity

who is holding possession but belongs to the owner of

the money. We submit that a tortfeasor is Jess entitled

to keep interest than a person breaking a contract, which

is a private agreement. A tort is a violation of a duty

established by law. When we go a step farther to include

a tort which is insured against and where the funds come

19

into the insurance company for the sole purpose of paying

the victims of torts, we find no reason to allow said insur-

ance industry to say that they could appropriate pre-

judgment interest.

The allowance of prejudgment interest is a recogni-

tion that the past earning value of money, as well as

the money itself, belongs to the prevailing plaintiff. Since

that is so, prejudgment interest cannot be discretionery,

The Court of Appeals opinion that prejudgment interest in

wrongful death cases is discretionary is unfair and could

lead to ‘‘judge shopping’? by both parties. In this case

over five years passed between the death and the entry

of judgment; no settlement offer was ever received from

Defendant Roosevelt. There is no reason why this Plain-

tiff should not recover prejudgment interest but some

other plaintiff, before some other judge, could recover it.

Prejudgment interest has always been held to be part

of the damages in certain tort cases, especially conversion

cases. Since it is a matter of right, the Court of Appeals

erred in holding that such interest was discretionary.

The Courts cannot allow a ‘“diseretion’’ about the legal

meaning of ‘‘interest’’ as belonging to the owner of the

money. This basie principle, which has been a part of

New Mexico law since 1925, that interest is a part of

the damages ‘‘law”’ and a part of the compensation, does

not permit discretion by the trial court.

Since the interest earned in the past on the money

belongs to the prevailing plaintiff, it is unconstitutional

to take the money and give it to the defendant. Such a

practice is in violation of the New Mexico Constitution,

It amounts to a deprivation of property without due

process. It also treats plaintiffs in wrongful death cases

unequally - it denies them the earning power of their

20

money in violation of the State and Federal Constitu-

tional provisions cited.

Prejudgment interest in wrongful death cases is a

mandatory part of a plaintiff’s recovery which should

be added to the amount of the verdict by the trial judge.

This issue was raised in the Court of Appeals in Point

Four of the Brief-in-Chief. The Court of Appeals erred

in holding that prejudgment interest was ‘*discretionary’’

and that there was no abuse of discretion here.

2. Inadequacy of the damages is a Violation of Due

Process, Equal Protection and Discriminatory.

The Court of Appeals Opinion on damges is in conflict

with numerous decisions of the appellate courts in this

state on damages and undisputed evidence. The measure

of damages in a wrongful death case was established

Varney v. Taylor, 77 N. M. 28, 34-35, 419 P.2a 234 (1966).

‘**We think net income is the more realistic basis

for arriving at the equivalent to compensation for

the deprivation of the reasonable expectation of

pecuniary benefits that would have resulted from

the continued life of the deceased. Without intending

to state a rule as to what should be deducted from

gross earnings to arrive at a net figure, but only

as an example, we point out that Federal and State

income taxes and social security taxes are often sub-

stantial deductions from gross earnings and certainly

are not a part of the decedent’s income which his

family could expect as direct pecuniary benefits.’’

In a decision in the same ese, Varney v. Tylor, 79 N.M.

652, 655, 448 P.2d 164 (1968) this Court stated:

‘in view of our holding that net income is the

proper basis for measuring anticipated earnings of a

21

decedent, his estimated personal living expenses must

be deducted to arrive at a realistic measure of dam-

ages which would reflect the pecuniary loss sustained

by his wrongful death.

“We do direct appellee to weight all of the evi-

dence in the case and not arbitrarily disregard par-

ticularly important and qualified testimony whether

it be a witness for the Commission or a witness for

the utility, absent an exception to the rules set forth

above.’’

The Court of Appeals Opinion rejects this standard for

measuring wrongful death set out in Varney, supra, by

holding that a jury can reject uncont “adicted evidence of

the net income loss caused by a death.

The Court of Appeals Opinion is in conflict with the

Court’s decision in Alto Village Services Corp. v. N.M.

Public Service Comm’n., 92 N.M. 323, 587 P.2d 1834 (1978).

The issue there was the effect of an expert witness

testimony, including testimony about future population

growth and projected future earnings and expenses. The

Court, referring to this expert testimony about future

events, stated, at p. 326:

‘‘The rule is well established in this jurisdiction

that the testimony of witnesses, whether interested or

disinterested, cannct arbitrarily be disregarded by the

trier of the facts unless any of the following appear

from the record: (a) that the witness is impeached;

(b) that the testimony is equivocal or contains inher-

ent improbabilities; (c) that there are suspicious

circumstances surrounding the transaction testified to;

or (d) that there are legitimate inferences from the

facts which cast doubt upon the truth or accuracy of

the testimony. Tauch v. Ferguson-Steere Motor Com-

pany, 62 N.M. 429, 312 P.2d 83 (1957); Heron v.

Gavlor, 52 N.M. 23, 190 P.2d 208 (1947); Medler v.

99

Henry, 44 N.M. 274, 101 P.2d 398 (1940). The ruie

applies in this case. We do direct appellee to weigh

all of the evidence in the case and not arbitrarily

disregard particularly important and qualified testi-

mony Whether it be a witness for the Commission or

au witness for the utility, absent an exception to the

rule set forth above.’’

The Court of Appeals Opinion is in conflict with the Alto

decision in several respects. First, it confuses expert

‘‘opinions’’ with expert mathematical calculations. The

economist was not giving her opinion in this case. Like

the expert in d/to, she was using statistics and mathe-

matical computations to project future events, as directed

by Varney. Therefore, the Court of Appeals Opinion is

in conflict when it states:

‘*Plaintiff contends that the testimony of the

economist established a monetary worth of Strickland’s

life around $325,000.00, that an award of $105,000.00

shows that the jury disregarded both the testimony

of pain and suffering and the testimony of the econ-

omist. The premise for this argument is that the

testimony of the economist was uncontradicted. Be-

cause this testimony was uncontradicted, plaintiff

asserts that she was entitled to a minimum award in

the amount to which the economist testified. This

claim is incorrect (A) procedurally and (B) on the

merits.

‘A, Procedure.

‘*The economist testified as an expert; the econo-

mist’s damage testimony was an expression of an

opinion. VanOrman v. Nelson, 78 N.M. 11, 427 P.2d

896 (1967), states:”’

The Court of Appeals’ Opinion is also in conflict with

U.J.1. 18.30 which states, in part:

yo

=~)

‘‘Your verdict must be based on evidence, not

upon speculation, guess or conjecture.”

The Court of Appeals states here, however, at p.o:

‘‘Plaintiff asserts the jury did not follow the

instruction because the damage award was for a lesser

amount than established by the evidence.”’

The Opinion seems to concede that damages of over $300,-

000 were established by the evidence, and not contradicted.

Since that is so, and the award must be based on the

evidence, the Court of Appeals’ Opinion is in conflict with

U.J.1. 18.30 when it states the jury can disregard the only

evidence on the amount of damages.

The Court of Appeals’ Opinion is also in conflict with

Varney, supra, when it states, at D1:

‘‘Plaintiff relies on the uncontradicted evidence

rule stated in Medler v. Henry, 44 N.M. 275, 101 P.2d

398 (1940). Uncontradicted evidence is not required

to be accepted as true if the evidence is equivocal.

State v. Chavez, 78 N.M. 446, 482 P.2d 411 (1967).

Evidence may be considered equivocal if the circum-

stances cast doubt on the aceuracy of the evidence.

Lucero v. Los Alamos Constructors, Inc., Supra.”’

Plaintiff presented the economic proof required and en-

dorsed, by Varney, supra. Since that type of evidence is

required, it is erroneous and unfair to hold that such

evidence is equivocal and can be rejected. The Court of

Appeals is in conflict with Varney by rejecting economic

testimony as too uncertain (page 8 of Opinion).

Although the Court of Appeals cites Turrietta v.

Wyche, 54 N.M. 5, 212 P.2d 1041 (1949), it is in conflict

with that case. Turrietia stated that:

24

‘*However ‘speculative’ such testimony may be,

it is the best that can be produced to establish earning

capacity over a period of vears.”’

Plaintiff produced the best evidence available: such un-

contradicted testimony cannot arbitrarily be disregarded.

The Court of Appeals’ Opinion is in conflict. with

Lahr v. Lahr, 82 N.M. 223, 478 P.2d 551 (1970). The issue

there was the weight to be given to a party’s own opinion

about the value of certain property.

THE OPINION ERRS IN LABELING THE ECON-

OMIST’S EVDENCE AS EXPERT-OPION RATH-

KR THAN A STATISTICAL EVIDENCE THUS

FALSELY JUSTIFYING A DISCRIMINATION

AGAINST THE WIDOW IN VIOLATION OF

14TH AMEND. AND 42 U.S.C. 1983.

On p.6 under A Procedure, the Opinion says ‘the

economist’s damage testimony was an expression of an

opinion’’ citing Van Ormau vs. Nelson, 78 N.M. 11, 427

P.2d 896 (1967) and a quote therein. The Opinion in our

ease states emphatic conclusions of fact and law. When

these underlying factors are examined the conclusions

are shown to be erroneous. There is no objective and

equitable analysis of the whole fact or legal situation.

We have one clear example here. The Plaintiff’s

economist Melissa Patterson testified on the Damage issue

but her testimony as in all Wrongful Death cases is noi

primarily opinion testimony. It is in the category of

statistical testimony in the main.

3. Plaintiff’s right to name the Defendant’s liability

carriers is a Constitutional one. This affects all the De-

fendants including the one dismissed by the Judgment

below.

Naming Defendants’ insurance carriers:

Security Insurance Company of Hartford, the work-

men’s compensation carrier, moved to file a complaint in

intervention to assert its right to reimbursement. (Tr. 21)

lt was allowed to intervene (Tr. 67) and did file its Com-

plaint as Plaintiff-in-Intervention. (Tr. 68-69) Four vears

later, after one trial and appeal, the compensation carrier

changed its attitude and moved to be dismissed as an

intervenor. Meanwhile, Maurer v. Thorpe, 95 N.M. 286,

621 P.2d 503 (1980), had introduced a Constitutional

principle of ‘‘equal protection of the law’’, Art. IT, See.

18, N.M. Const., into the picture.

Maurer, supra, t 288, established the rule that

‘*a plaintiff, who is compelled by law to join his

insurer and is then denied the right to name the

defendant’s insurance carrier as a party-defendant,

is prejudiced in presenting his ease and that such

practice is fundamentally unfair and violates con-

cepts of due process of law.’’

The Court’s decision was based on the plaintiff’s right

to due process. The dangers inherent in not allowing

defendants’ insurers to be named when there is an insur-

ance company plaintiff were outlined by the Court in

Maurer, supra, at p. 287-i88:

Based on the fact that there was an insurance com-

pany as a named plaintiff, Plaintiff Strickland moved to

name the Defendants’ insurance earriers (Tr. 422). That

Motion was denied by the trial court. (Tr. 441). Plaintiff

also made a Motion for New Trial based, in part, on the

trial court’s refusal to allow Defendants’ insurers to be

named. (Tr. 572-3). That Motion was denied. (Tr. 591).

This issue was presented to the Court of Appeals in

26

Point Three of the Brief-in-Chief. The Court of Ap-

peals affirmed the trial courts decision. When Plaintiff

Strickland was denied the right to name the Defendents

insurance carriers she was prejudiced in the presentation

of her case . The jury was not truthfully informed of the

status of the parties.

CONCLUSION

The New Mexico Court of Appeals ignored the exist-

ence of Constitutional rights to the case on appeal and

substituted an absolute discretion which of itself was a

‘‘discrimination’’ and ‘‘unequal’’ application of the laws

Petitioner seeks pro-

b

and a violation of ‘‘due process’’.

tection. The full Opinion is reported in 657 P.2d 1184.

EUGENE KE. KLECAN

520 Sandia Savings Bnilding

Albuquerque, New Mexico 87102

(505) 243-7731

Attorney for Petitioner

to

“I

APPENDIX A

In the Court of Appeals of the

State of Nem Mexico

No. 5645

RHODA ANN STRICKLAND

Appellant

v.

SECURITY INSURANCE CO., et al

Appellees

Bernalillo County

No. 77-03846

MANDATE

TO: DISTRICT COURT CLERK

(Applicable items are indicated by an ‘‘X”’ below.)

1. X Attached is a true and correct copy of the original

decision entered in the above-entitled cause.

2. X This decision being now final, the cause is remanded

to vou for any further proceedings consistent with

said decision,

3 Writ of Certiorari having been issued by the New

Mexico Supreme Court and their decision now being

final, this cause is remanded to you for any further

proceedings consistent with said Supreme Court de-

cision attached hereto.

4. You are directed to issue any commitment necessary

for the execution of your judgment and sentence.

3. Cost Bill is assessed as follows:

6. District Court Clerk’s Record returned herewith.

& Depositions

7. X Exhibits filed herein shall be picked up at this Clerk’s

Ofiice forthwith.

~

28

By direction of and in the name of the Chief Judge of

the Court of Appeals, this 7th day of February, 1983.

(SEAL)

ec: Counsel

s/Susan W. Baywell

Clerk of the Court of Appeals of the State

of New Mexico.

(Tear off and return this receipt)

No. 5645

RECEIPT IS ACKNOWLEDGED of the original

mandate

DATED:

Clerk of the District Court

AppEenpix B

OPINION OF COURT OF APPEALS OF

STATE OF NEW MEXICO

WOOD, Judge.

Joseph Strickland was delivering a truckload of. soil

conditioner to Carter’s farm. While unloading, with the

bed of the trailer raised, the bed came close to overhead

electric wires of the Electrie Company (Roosevelt County

Rural Electric Cooperative). Strickland was electrocuted.

Plaintiff songht damages for wrongful death. The jury’s

verdict was in favor of Carter; its verdict was against the

Electric Company. Plaintiff appeals; the Electric Company

cross-appeals. There are five issues: (1) admission of

evidence as to the height of the overhead wires; (2) the

refusal to add the defendants’ liability insurance carriers

as party-defendants; (3) the damage award; (4) pre-

judgment interest; and (5) reimbursement of the eom-

pensation carrier.

The Damage Award

The jury verdict for wrongful death was $105,000.06.

The jury failed to find negligence on the part of Strickland.

Judgment for the entire amount of the verdict was entered

in favor of plaintiff. Prior to entry of judgment, plaintiff

moved for an additur or, in the alternative, for a new trial

on the damage issue. See Hammond v. Blackwell, 77 N.M.

209, 421 P.2d 124 (1966). Plaintiff contends the trail court

erred in denying the motions and asserts ‘‘[t]he jury’s

verdict must have resulted from prejudice, partiality, or

a mistake on its part as to the measure of damages.”’

Hammond v. Blackwell, supra.

The damage instruction was based on U.J.1. Civ. 18.30,

N.M.S.A. 1978 (1980 Repl.Pamph.). Plaintiff asserts this

instruction is mandatory in that it states the basis of a

wrongful death. We agree, see the New Mexico decisions

cited in the Committee Comment to U.J.I. Civ. 18.36. Plain-

tiff asserts the jury did not follow the instruction because

30

the damage award was for a lesser amount than estab-

lished by the evidence. This contention confuses the basis

for a damage award with the amount of a damage award.

U.J.I. Civ. 18.30 states that the weight to be given to the

evidence on the permissible items of damages is for the

jury to determine. Although the evidence would have

sustained an award of a greater amount. the fact that the

verdict was for a lesser amount does not show that the

jury failed to follow the instruetion.

There was uncontradicted evidence that Strickland

underwent pain and suffering between the time of the

accident and his death. Plaintiff contends that the amount

of the damage award shows that the jury disregarded this

evidence, This argument overlooks how damages for pain

and suffering are determined. There is no standard fixed

by law for measuring the value of pain and suffering;

rather, the amount to be awarded is left to the jury’s

judgment. Mathis v, Atchison, Topeka and Santa Fe Rail.

wav Co., 61 N.M. 330, 300 P.2d 482 (1956). The jury was

so instructed. See U.J.I. Civ. 18.7, N.M.S.A. 1978 (1980

Repl.Pamph. ).

There was also testimony from an economist concern-

ing Strickland’s lost earnings between the death in 1976

and trial in 1981, and concerning lost future earnings.

This earnings testimony went to the monetary worth of

Strickland’s life. See U.J.I. Civ. 18.30. There js no issue

as to the admissibility of the economist’s testimony. See

Wilson v. Wylie, 86 N.M. 9, 518 P.2d 1213 Ct.App. 1973).

The question is how that testimony must be treated by

the fact finder.

Plaintiff contends that the testimony of the economist

established a monetary worth of Strickland’s life of around

$325,000.00, that an award of $105,000.00 shows that the

jury disregarded both the testimony of pain and suffering

and the testimony of the economist. The premise for this

argument is that the testimony of the economist was un-

contradicted. Because this testimony was uncontradicted,

plaintiff asserts that she was entitled to a minimum award

31

in the amount to which the economist testified. This claim

is incorrect (A) procedurally and (B) on the merits.

A. Procedure

The economist testified as an expert; the economist’s

damage testimony was an expression of an opinion. Van

Orman v. Nelson, 78 N.M. 11, 427 P.2d 896 (1967), states:

The opinion of an expert although uncontradicted

is not conclusive of the fact in issue. Jamison v.

Shelton, 35 N.M. 34, 289 P. 593 (1930). An exception,

however, is noted in Ross v. Sayers Well Servicing Co.,

76 N.M,. 321, 414 P.2d 679 (1966). The fact finder

may reject expert opinion evidence in whole or in

part. Lopez v. Heesen, 69 N.M. 206, 365 P.2d 448

(1961).

The exception noted in the above quotation involves proof

of causation as a medical probability in a compensation

ease; thus, the exception is not applicable. See Lucero v.

Los Alamos Constructors, Inc., 79 N.M. 789, 450 P.2d 198

(Ct.App. 1969).

The jury was instructed:

You should consider each expert opinion received

in evidence in this case and give it such weight as you

think it deserves. You may reject it entirely if you

conclude the opinion is unsound.

See U.J.I. Civ. 2.13, N.M.S.A. 1978 (1980 Repl.Pamph.).

Plaintiff did not object to this instruction which in-

formed the jury that it could give the economist’s damage

testimony such weight as the jury thought it deserved.

Not having objected to this instruction, plaintiff may not

complain of the jury’s failure to accept 100 percent of the

economist’s testimony. See R.Civ.P. 51(1T), N.M.S.A. 1978

(1980 Repl.Pamph.).

B. Merits of Plaintiff’s Contention

Plaintiff presents two arguments concerning uncon-

32

tradicted testimony. First, plaintiff points out that the

Electric Company introduced no evidence concerning the

monetary worth of Strickland’s life, and asserts that such

evidence could have been produced and could have contra-

dicted the testimony of the economist. Plaintiff seems to

assert that the failure of the Electric Company to produce

such evidence requires a verdict in the amount of the

damage testimony introduced by plaintiff. This argument

fails to recognize that the burden of persuading the jury

as to the amount of damages was upon the plaintiff; the

Kleetrie Company had no such burden. See U.I.T. Civ. 3.6,

N.M.S.A. 1978 (1980 Repl.Pamph.); Wallace v. Wanek,

81 N.M. 478, 468 P.2d 879 (Ct.App. 1970).

Second, plaintiff relies on the uncontradicted evidence

rule stated in Medler v. Henry, 44 N.M. 275, 101 P.2d

398 (1940). Unecontradicted evidence is not required to be

accepted as true if the evidence is equivocal. State cv.

Chavez, 78 N.M. 446, 482 P.2d 411 (1967). Evidence may

be considered equivocal if the circumstances cast doubt

on the accuracy of the evidence. Lucero v. Los Alamos

Constructors, Inc., Supra.

We do not list all of the testimony that was equivocal,

the following examples are sufficient:

(a) On the basis of Strickland’s age, the econo-

mist used a work-life expectaney of 34.25 vears. This

figure was obtained from tables prepared by the U.S.

Department of Labor for all male workers in the United

States of Strickland’s age. The work-life expectancy table

included truck drivers, but the work-life expectaney was

not specific for truck drivers. The work-life expectancy

table states an average of how long people work, ‘‘some

people work longer and some people work for shorter

lengths of time.”’

(b) Earnings of $12,000 to $13,000 for 1976 were

projected as a basic wage for the length of the work

expectancy with an increase of 8 percent each year. On

33

this basis, Strickland would have been making over

$160,000.00, as a truck driver, in the year 2009. As the

economist stated: ‘‘That is shocking when we look at it

projected that many years into the future... .”’

(c) The 8 percent wage increase every vear

“would inelude both price and productivity’’, ‘‘Price’’

seems to means wage increases due to inflation; a five to

six percent price increase was projected for every year

for 34.25 vears. ‘*Productivity’’ was explained as more

efficient truck driving; a two to three percent productivity

increase was projected every year for 34.25 vears.

(d) The & percent wage increase every vear was

an average for all truck drivers without regard to the

type of truck driving done by Strickland. The higher

income of long-haul drivers was included in this average.

There is evidence that Strickland did not like long-haul

driving.

(e) In figuring how much should be deducted

from gross earnings for Strickland’s personal mainten-

ance, the economist used a Department of Labor ‘*bud-

xet’’ prepared for Denver, Colorado because that was

the closest government ‘“‘budget’’; no ‘*budget’’ was avail-

able for Albuquerque. However this cost ‘*does have to

do with locality.’’

The economist’s damage testimony was based on the

view that Strickland would have an average work life,

would have an 8 percent wage increase every vear of the

work life and that Strickland, an Albuquerque resident,

would have the same cost for personal maintenance as a

hypothetical person in Denver as determined by a govern-

ment ‘‘budget’’ of undisclosed detail. This testimony is

not at all comparable to an owner’s valuation of real

estate for the purpose of dividing community property in

a divorce action. See Lahr v. Lahr, 82 N.M. 223, 478 P.2d

991 (1970), where the uncontradicted evidence rule was

applied.

The predictive abilities of economists have not ad-

o+

vanced so far that they can forecast the work life or the

wage increases for an individual over a period of thirty

years. See Bach v. Penn Central Transportation Co.,, 502

F.2d 1117 (6th Cir. 1974). Their predictions involve a

‘‘plethora of uncertainties’’. See coneurring opinion of

Judge Friendly in Feldman v. Allegheny Airlines, Inc.,

524 F.2d 384 (2d Cir. 1975).

Turnetia v. Wyche, 54 N.M. 5, 212 P.2d 1041, 15

A.L.R.2d 407 (1949), held that testimony similar to that

of the economist was admissible to prove future earning

capacity, but recognized the limitations of such testimony.

Turritta states:

It is all preblematical at best. It is not questioned

that mortality tables are admissible, but possibly

not one time in fifty would the life expectaney of

any individual come within a vear of the actual

length of his life. It is, to say the least, prob-

lematical whether he would continue to live, con-

tinue to work, continue to work with much the same

effort and ability he has shown in the past, continue

to have the desire and the opportunity to work.

Also, that the amount of wages paid him and those

following his occupation generally in the past, will

continue to be paid, that the wage seale will not be

materially affected by depression, strikes, inflation,

or war; that interest rates will remain much as

they are. However ‘‘speculative’’ such testimony

may be, it is the best that can be produced to

establish earning capacity over a period of years.

A jury of twelve average citizens ordinarily can

be depended on to assess damages fairly, after they

have heard and considered such evidence.

Damage testimony based on projections of assump-

tions does not come within the uncontradicted evidence

rule stated in Medler v. Henry, supra, and need not be

taken as true by the fact finder; the jury was not reqnired

to aecept the economist’s testimony as true in this case.

39

The contentions relied on by plaintiff, to show that

the verdict resulted from prejudice, partiality or a mis-

taken measure of damages, are without merit.

Prejudgment Interest

Plaintiff’s request for prejudgment interest was de-

nied. The judgment entered February 1, 1982 bears inter-

est at 6 percent from date of entry. Plaintiff contends

she is entitled to prejudgment interest of 10 percent.

Plaintiff’s briefs present numerous arguments for an

award of prejudgment interest in a wrongful death case.

We do not identify or answer these arguments. The only

record of this issue being raised in the trial court is in-

cluded in the order disposing of several post-trial motions.

That order states ‘‘that pre-judgment interest requested

by the plaintiff is hereby denied.’’ There being no show-

ing that plaintiff’s arguments were raised in the trial

court, we do not consider them. R.Civ.App. 11, N.M.S.A.

1978. The only issue we discuss is a legal one—whether

prejudgment interest may be allowed in a wrongful death

case. Compare DesGeorges v. Grainger, 76 N.M. 52, 412

P.2d 6 (1966).

Most prejudgment interest decisions in New Mexico

involve breach of contract. The rule most helpful to

plaintiff in those decisions is that where the amount of

damages is uncertain until fixed by the judgment, the

allowance of prejudgment interest is discretionary. Shaffer

v. Kelton, 95 N.M. 182, 619 P.2d 1226 (1980); Kennedy

v. Moutray, 91 N.M. 205, 572 P.2d 933 (1977). State T. &

S. Bk. et al. v. Hermosa L. & C. Co., 30 N.M. 566, 240 P.

469 (1925), suggests that as a matter of fairness the same

rule should apply in tort cases if the date of the tort is

ascertainable.

Even if prejudgment in a tort case is allowable, ‘‘its

allowance as damages rests in the discretion of the jury.’’

DePalma &€ Ruppe v. Weinman & Barnett, 15 N.M. 68,

103 P. 782 (1909). DePalma held that the trial court erred

36

in instrueting the jury to allow interest on any damages

awarded; that it was for the jury to determine whether

interest should be awarded.

On the specific question of the allowance of »rejudg-

ment interest in wrongful death cases, Annot.. 96 A.L.R.2d

1104, 1107 (1964), states:

[I]t should he noted that since an action for wrong-

ful death is a creature of statute, the compensation

. Which may be recovered in such an action is

limited by the enactment creating the right, and

therefore, in determining what damages are re-

coverable, the court must look primarily to the

wrongful death statute.

If prejudgment interest is recoverable for wrongful

death, then further questions must be answered. The An-

notation, at 1108, states:

In state courts the question wider discussion

appears to have been treated from two standpoints:

(1) whether prejudgment interest may be allowed

by the jury or trier of facts in their diseretion,

and (2) whether it is recoverable as a matter of

right. Although there are some exceptions and

qualifications, it appears to be the general view that

prejudgment interest on wrongful death damages

(1) may be allowed in the discretion of the jury

or trier of facts, and (2) may not be added to the

jury verdict by the court or clerk in the absence of

express statutory provision.

It is unnecessary to decide the various questions

concerning prejudgment interst in wrongful death cases.

Under New Mexico decisions, the view most favorable to

plaintiff is that prejudgment interest in a wrongful death

case is a matter of discretion. Assuming, but not deciding,

that this is the correct view, the appellate issue is whether

the trial court abused its discretion in denying prejudg-

ment interest.

37

We comment on only one of the arguments concerning

abuse of discretion —that of the delay occurring prior

to the trial in 1981. The Electric Company argues that

plaintiff was responsible for the delay; in support of this

argument, documents, purportedly of federal court pro-

ceedings, are attached to the Electric Company’s brief.

These documents have not been considered. Not having

been introduced in the trial court, the documents are not

part of the record to be reviewed, and were improperly

attached to the brief. Baca v. Swift & Company, 74 NM.

211, 392 P.2d 407 (1964).

The record does not show an abuse of diseretion in

the denial of prejudgment interest; thus under the assump-

tion most favorable to plaintiff, denial of prejudgment

interest was not error.

The trial court correctly orderd the judgment to bear

interest at 6 percent. The increase in the interest rate

stated in § 56-8-3, N.M.S.A. 1978 (1982 Cum.Supp.), from

6 percent to 10 percent, was enacted in 1980. The in-

creased rate did not apply to the complaint, filed in 1977.

Hillelson v. Republic Ins, Co., 96 N.M. 36, 627 P.2d 878

(1981).

Reimbursement of the

Compensation Carrier

After verdict, but prior to judgment, Security moved

that the trial court order that it be reimbursed for com-

pensation paid, and to be paid until reimbursement actually

occurred. Plaintiff filed an affidavit opposing the motion;

Security filed a counter affidavit. The trial court ordered

that Security be reimbursed out of the judgment for

$105,000.00. The amount of reimbursement was $33,133.72

up to trial, plus the amount of compensation paid subse-

quent to trial. The trial court also denied plaintiff’s re-

quest that Seeurity’s reimbursement be either reduced or

eliminated. Plaintiff claims these rulings were error. The

contentions, and our answers, follow.

38

(a) Plaintiff claims that she should not be com-

pelled to reimburse Security because the result will be

that plaintiff will end up receiving less than she would

have received in compensation benefits; the ‘‘wrongful

death recovery should not operate to destroy the benefits

of the compensation act.’’ Castro v. Bass, 74 N.M. 254, 392

P.2d 668 (1964), states:

[When damages are sought and recovered from

the tortfeasor, the amount of the recovery is for

the full loss or detriment suffered by the injured

party and makes him financially whole.

. ©. ©

Plaintiff having recovered ... [her] damages rep-

resenting payment in full for... [her] injuries...

[she] may not therafter claim compensation in

addition.

See Seminara v. Frank Seminara Poutiac-Buick, 95 NM.

22, 618 P.2d 366 (Ct. App. 1980).

(b) Plaintiff asserts that Seeurity should be barred

from any reimbursement hecause Security ‘‘actually im-

peded and obstructed the Plaintiff and tried to and did

assist the Defendants.’’ This argument is frivolous. Ex-

amples are: (1) Plaintiff contends obstruction is shown

because of Security’s efforts to delay its intervention until

after verdict, thus attempting to prevent plaintiff from

having the liability insurance carriers of defendants as

parties. This was answered in the second issue of this

opinion. (2) A witness for Security testifid as to the

amount of compensation paid and concerning Carter’s

written statement. Plaintiff asserts this witness’s testimony

was slanted. There was no slanting in this testimony.

(3) Plaintiff claims Security took steps to minimize the

amount of plaintiff’s recovery. Security’s participation

in the trial was minimal, and it must be remembered,

Security was present at the trial at plaintiff’s insistence.

Security's closing argument, three typewritten pages in

its entirety, reminded the jury of evidence favorable to

plaintiff that was obtained through Security, that Security

39

sought only its reimbursement, that the compensation pay-

ments were not adequate for the actual loss and the jury

should award damages both for monetary loss due to the

death and, in addition, for pain and suffering.

(c) Plaintiff asserts that Security should bear a

portion of the costs of the litigation inasmuch as Security

is to be reimbursed from plaintiff’s recovery. Security

does not dispute that apportioning costs is proper. Trans-

port Indemnity Company v. Garcia, 89 N.M. 342, 552

P.2d 473 (Ct.App. 1976). There is no suggestion as to the

amount of the costs that should be apportioned. All we

are presented with is the claim that apportionment should

occur, and that the trial court refused to apportion. Al-

though no monetary amounts were referred to in the trial

eourt, the affidavit and counter affidavit differ as to costs

borne by Seeurity, and differ as to any agreement to

share costs. In light of these differences and not being

informed as to any monetary amounts, we have no basis

to hold that the trial court’s refusal to apportion was

erroneous,

(d) Plaintiff contends that the amount of Secur-

itv ’s reimbursement should be relied on the Contimental Gas

fable principles. The cases relied on are Continental Gas

Co. v Wueschinski, 95 N.M. 733, 625 P.2d 1250 (Ct.App.

1981) and White v. Sutherland, 92 N.M. 187, 585 P.2d 33]

(Ct.App. 1978). Neither case is applicable. The amount

of the worker’s recovery (White) or potential recovery

(Continental) was a sum available from insurance pro-

ceeds. A sufficient distinction is that neither case involved

a verdict establishing the ‘‘full loss’’ making the plaintiff

‘*financially whole’’. See Castro v. Bass. supra. White

involved a settlement at no more than 10 percent of the

damages; the jury verdict in this case established plain-

tiff’s ‘‘full loss’’, and judgment was entered for the full

amount of the jury verdict. Having been made ‘financially

whole’’ by the damage award, plaintiff may not retain

both the compensation benefits and the damages recov-

ered. Section 52-1-56(C), N.M.S.A. 1978; Reed v. Styron,

69 N.M. 262, 365 P.2d 912 (1961). There is no factual

40

basis for reducing the amount of Securitv’s reimburse-

ment on the basis of equitable principles.

The judgment is affirmed. No appellate costs are

awarded.

IT IS SO ORDERED.

Joe W. Wood, Judge

WE CONCUR:

Ramon Lopez, Judge

Thomas A. Donnelly, Judge

Full Opinion found in 657 P.2d 1184.

41

APPENDIX C

MOTION FOR REHEARING WHICH INCLUDES

ASSERTIONS OF FEDERAL ISSUES UNDER

14th AMENDMENT, U.S. CONSTITUTION

The Opinion miseconstrues the Appeliant’s argument

on wrongful death damages.

Briefly stated ‘‘the jury in a Wrongful Death ease

should not be allowed to decide questions of law’’. U.J.L.

prohibits certain items of damage from the jury’s con-

sideration, e.g. ‘‘loss of decedent’s society to the family’’

and a jury would not be able to change the law by con-

sidering the prohibited items.

The Defendant would not have a burden of persuasion

to persuade a jury not to make an award based on the

prohibitions in the U.J.I. The instruction is equally

mandatory in stating affirmatively what the essentials of

damages are. When the U.J.I. say ‘‘should”’ the language

is ‘‘mandatory’*. The Plaintiff should not bear a burden

of convincing a jury that the Supreme Court’s decision

on which the U.J.[. is based is reasonable. Under such a

ruling the Plaintiff is being denied equal protection of

the laws. Use of an economist seems to be universal

practice and a formula has been used based on statisties

to arrive at a figure. When the evidence is uncontradicted,

the jury is the judicial body speculating when they refuse

to follow the uncontradicted testimony. As one example,

the whole life insurance business is predicated on the

statistic of a mortality table and the Supreme Court has

adopted that approach. It is certainly never intended to

be a propheey but our argument is that a Plaintiff ean in

reality be deprived of a wrongful death case if the mortal-

ity tables are disregarded. The Opinion gives to a jury

the right to second guess the expert if they don’t agree

with any of the projections based on statistics. Padgett

v. Buxton-Smith Mercantile, 262 F2d 39, lays down the

fundamental premise for using an expert at all. It is to

enlighten the jurors on a subject which is beyond the

42

knowledge of an ordinary lay person. It would be a usur-

pation of a judicial function for an expert to testify to

an opinion which the average lay person could readily

form. Contrarywise, our position is that a jury cannot

usurp the position of an expert when the subject is a

technical one and where the results are a compilation of

statistics and not merely an opinion. The basic premise

of our argument is that the components of damages in

New Mexico are established by the Supreme Court and not

the expert. The basis for the Supreme Court establishing

components is that the lifetime earnings are to be a pro-

jection of those items existing at the time of death and

that is basically why we submit that the jurv was areuing

with the Supreme Court’s ruling on damages. Projections

from statistics are per se based on averages but having

allowed damages for wrongful death in a manner different

from Lord Campbell’s lump sum, our Supreme Court has

tried to make it as mechanical as a fixed lump sum. When

U.J.1. says that a ‘‘reasonable discount should be made”,

certainly the jury could not disregard that and fail to

apply it. Therefore, we submit that the Plaintiff is denied

the same rights that a defendant has and therefore we have

an unconstitutional situation where a Plaintiff is denied

the equal protection of the laws in violation of Art. IT,

Sec. 18, of the New Mexico Constitution and against the

14th Amendment to the Constitution of the United States.

There are noteworthy decisions like Paddock v. Schuelke,

81 N.M. 759, 478 P.2d 373, which require a directed verdict

because the evidence is all one way. It is true that liability

facts are real world physical facts and a witness sees what

he sees, but Melissa Patterson is only stating a compila-

tion of items mandated by the Supreme Court as to what

should be ineluded and exeluded.

Padgett v. Buxton-Smith Mercantile, supra, rejected

an expert’s opinion because the jury was just as good a

judge of the subject matter as the lay expert, but in the

instant case, the jury in reality refused a qualified expert’s

opinion on what the law of damages should be and the

expert was the Supreme Court of New Mexico. Melissa

Patterson only did what that Court required her to do.

45

Plaintiff’s have a hard time with the restrictions of

the Wrongful Death Statute. The only persuasive part of

the whole Instruction is that the Supreme Court said

plaintiffs had to do it this way. We would ask a recon-

sideration of this problem.

APPELLANT ASKS A RECONSIDERATION OF THE

OPINION ON THE PRE-JUDGMENT INTEREST

Argument was made that the interest on mony wher-

ever and whenever belongs to the person who owns the

money. The contention was that this is a true economic

fact aecepted in financial circles and it was further

contended that actual possession of the money was not

necessary.

The Opinion says that ‘‘the view most favorable to

Plaintiff is that pre-judgment interest in a wrongful

death case is a matter of discretion’’. This discretion is

not defined in the Opinion but we submit that a ‘‘dis-

eretion’’ in the trial court which enables a universally

accepted financial! practice to be disregarded without any

euiding principles for the exercise of that discretion is

something other than a judicial discretion and would in

a wrongful death case be unconstitutional as a taking of

one’s property and giving it to another without due pro-

css of law, in violation of Art IT, Sec. 18, of the New

Mexico Constitution and 14th Amendment of the United

States Constitution.

Stated otherwise, what legal or constitutional right

exists in a defendant or his insurance carrier which en-

ables him to keep the earning power of money that belongs

to another? Certainly a judicial ‘‘discretion’’ is not an

adequate basis. We also request a reconsideration because

of the financial advantage occurring to the defendant or

his insurer by delaying a settlement or not settling at all.

The second to last paragraph in the Opinion seems

to hold that pre-judgment interest is not allowed legally

but that the Plaintiff might be able in an undescribed

44

situation to show that this was unjust. We request a re-

valuation of basic property rights relative to ‘‘interest’’

and New Mexico law on this subject.

KLECAN & SANTILLANES, P.A.

By: s/Kugene E. Klecan

Eugene E. Klecan

Attorney for Plaintiff-Appellant,

Cross-Appellee

520 Sandia Savings Building

Albuquerque, New Mexico 87102

(505) 243-7731

45

Appenpix D

IN THE COURT OF APPEALS OF THE

STATE OF NEW MEXICO

DECEMBER 22, 1982

RHODA ANN STRICKLAND, as Personal

Representative of the Estate of

JOSEPH KAY STRICKLAND, Deceased,

Plaintiff-Appellant / No. 5645

Cross-A ppellee, D.C. No. 77-03846

and |

SECURITY INSURANCE COMPANY OF

HARTFORD,

Plaintiff in Intervention-Appellee,

Vs.

ROOSEVELT COUNTY RURAL ELECTRIC

COOPERATIVE,

Defendant-Appellee/Cross-Appellant,

and

CYRIL E. CARTER,

Defendant-Appellee.

JOE KE. WOOD RAMON LOPEZ

Presiding Judge THOMAS A. DONNELLY

Judges

In this cause, a motion for rehearing having been filed

by Appellant, and consideration having been had by all

of the members of the original panel,

IT- IS ORDERED that the motion for rehearing be

DENIED.

s/ Joe W. Wood

Presiding Judge

ATTEST: A true copy

s/ Susan W. Baywell

Clerk of the Court of Appeals By: s/ Jane Gurule

of the State of New Mexico Deputy

46

Aprenbix EF

Appellant’s Brief-in-Chief raised Federal issues under

14th Amend., U.S. Const. on pgs. 29, 30 as follows:

‘‘The substantial rise in interest rates in recent

vears is a fact to be considered as of now and alters

decisions made forty to ninety vears ago for Cousti-

tutional reasons. The most basic premise is the deh-

nition of interest as being the earning power of money,

which belongs to the owner of the money. This owner-

ship of property (money) is protected by the Con-

stitiutional due process clause in both the State and

Federal Constitution. Art. IT, See 18 and the 14th

Amendment. We submit that the New Mexico Con-

stitution provision requiring ‘‘due process’’ and also

‘‘equal protection’’ of the laws takes precedence

over Art. IV, Sec. 34 and also the 14th Amendment

protecting all citizens of the various states in their

property rights.”’

Also, Petition for Rehearing to New Mexico Court of

Appeals raised U.S. Constitutional issues and is included

in the Appendix. Appellant’s Brief in Chief said Plaintiff

is denied ‘‘equal protection of the laws, Art. II, Sec. 18,

*)

N. M Const. and 14th Amend., U.S. Const.’’, p. 31.

Aprenpix F

Webster’s Third New International Dictionary defin-

ing ‘‘Interest’’.

Black’s Law Dictionary, Fifth Ed., p. 729, defining

‘“‘Interest’’: ‘*‘The most general term that can be em-

ploved to denote a right, claim, title, or legal share in

something. In its application to lands or things real, it

is frequently used in connection with the terms ‘estate,’

‘right,’ and ‘title.’ More particularly it means a right to

have the advantage accruing from anything; any right in

the nature of property, but less than title.’’

47

APPENDIX G

JUDGMENT

This action came on for trial before the Court and a

jury, Honorable Harry E. Stowers, Jr., District Judge,

presiding, and the issues having been duly tried and the

jury having returned its verdict in favor of the plaintiff

and against the defendant Roosevelt County Rural Electric

Cooperative in the sum of $105,000.00 and also having re-

turned a verdict in favor of defendant Cyril E. Carter.

IT IS ORDERED AND ADJUDGED that plaintiff

is awarded judgment against defendant Roosevelt County

Rural Electric Cooperative in the amount of One Hundred

Five-Thousand Dollars ($105,000.00) together with the

costs of this action. Judgment is hereby entered in favor

of the defendant Cyril FE. Carter with costs against the

defendant Roosevelt County Rural Electric Cooperative.

Judgment against Roosevelt County Rural Electric Coop-

erative is to bear interest at the rate of six percent (6%)

per annum from the date of the filing of this Judgment.

The Plaintiff in Intervention shall recover from the above

amount all compensation paid and to be paid.

HARRY KE. STOWERS, JR.

District Judge

ORDER

The following matters having come before the Court

in the form of post-trial motions and objections and the

Court having considered the matter, makes the following

rulings:

The Court rules that pre-judgment interest

requested by the plaintiff is hereby denied. The Court

further orders that plaintiff’s request for a reduction or

elimination of workmen’s compensation amount paid by

the Seeurity Insurance Company of Hartford is hereby

denied.

HARRY E. STOWERS, JR.

District Judge

48

Aprenpix H

UJI 14.17

DAMAGES—WRONGFUL DEATH

If vou should decide for the Plaintiff on the question

of liability you must then fix the amount of damage which

will be equivalent to compensation, not for the loss of life

itself, but rather for the loss of pecuniary benefits which

might reasonably have been expeet ted from the continued

life of the deceased. In arriving at the amount of such

— benefits, deduction must be made from gross

earnings or earning capacity, if any, to cover income taxes,

social security taxes and any other taxes or deductions

which would be made or paid before the family could

expect any pecuniary benefits from the deceased.

In fixing the amount of damages, allowance must be

made for the fact that the pecuniary benefits reasonably

to have been expected from the deceased are being aggre-

gated and paid in cash and a reasonable discount should

therefore be made for the earning power of such money.

in fixing damages the jury should consider the proof,

if any, as to age, earning capacity, health, habits and

probable duration of life of the deceased but should not

consider any of the following factors:

1. The pain and suffering to the decedent, if any.

2. The loss of decedent’s society by the (widow) and

(next of kin).

3. The grief or sorrow of the (widow) and (next of

kin).

4. The property or wealth of the survivors or of tne

defendants.

Your verdict must be based upon evidence, not upon

speculation, guess or conjecture; and, you must not per-

mit the amount to be influenced by sympathy or prejudice.

49