Westfall v. Caterpillar, Inc. , 120 Idaho 918 ( 1991 )

BAKES, Chief Justice,

specially concurring:

I agree with the majority’s conclusion in Part II of the opinion that “the trial court did not manifestly abuse its discretion in denying Caterpillar’s motion requesting a new trial.” Ante at 979. With regard to Caterpillar’s assertion that the trial court erred in prohibiting evidence of Westfall’s remarriage, the majority rule seems to be that evidence of remarriage may not be admitted to prove damages in a wrongful death case. However, I do not believe this rule extends so far as to allow a plaintiff, if she has remarried and taken her new spouse’s name, to testify falsely about her name in order to avoid possible disclosure of her remarriage in front of the jury.

A majority of the courts in other jurisdictions have held that evidence of a plaintiff’s remarriage may not be admitted in order to show damages.² The rationale underlying this rule was explained by the Arizona Supreme Court in Taylor v. Southern Pac. Transp. Co., 130 Ariz. 516, 637 P.2d 726 (Ariz.1981).

Historically, the refusal to consider the surviving spouse’s marital status in wrongful death cases has been attributed to three avenues of thought. One view is that damages should be calculated as of the time of death____ Another reason to exclude evidence of remarriage has been that the decedent’s contributions relative to the contributions of the new spouse would be too speculative to calculate accurately____ Lastly, and most often, it is advanced that the collateral source rule, which disallows evidence of payments to the injured party from other sources to be credited against the tortfeasor’s liability, should be invoked to exclude evidence of remarriage.

637 P.2d at 729 (citations omitted). See also, Groesbeck v. Napier, 275 N.W.2d 388 (Iowa 1979); Wood v. Detroit Edison Co., 409 Mich. 279, 294 N.W.2d 571 (Mich.1980); Kuhnke v. Fisher, 210 Mont. 114, 683 P.2d 916 (Mont.1984); Pape v. Kansas Power & Light Co., 231 Kan. 441, 647 P.2d 320 (Kan. 1982); Dubil v. Labate, 52 N.J. 255, 245 A.2d 177 (N.J.1968); Watson v. Fischbach, 54 Ill.2d 498, 301 N.E.2d 303 (Ill.1973); Duebelbeis v. Dohack, 615 S.W.2d 488 (Mo.App.1981).

However, several of these cases have refused to expand this general rule to allow a plaintiff to misrepresent her current marital status to the jury by continuing to use the name of the deceased spouse when in fact she has remarried and taken a new name. The New Jersey Supreme Court, in Dubil v. Labate, 52 N.J. 255, 245 A.2d 177, 180 (N.J.1968), explained this position as follows:

Though evidence of the plaintiff’s remarriage is not relevant to the question of damages, we disagree with the trial court’s attempt to suppress any mention of the remarriage. It would be offensive to the integrity of the judicial process if the plaintiff, after taking an oath to be truthful, were permitted to misrepresent her marital status to the jury. Of course, the defendants may not inquire into the details of the remarriage nor may they offer evidence concerning it. However, the desirable exclusion of evidence relating to the remarriage may not be carried to the point of affirmatively misrepresenting the truth to the jury. It seems to us that in the course of the trial of a wrongful death case, it would be virtually impossible to avoid mention of a remarriage without resorting to untruths____ Thus we believe that — while evidence of the details of a remarriage, such as the earnings of the new spouse or the birth of a child, is to be excluded— the mere fact of a plaintiff’s remarriage should not be kept from the jury. The trial judge should instruct the jury, at the beginning of the case, that the plaintiff has remarried but that this fact is to play no role in their determination of the pecuniary advantage which would have resulted from a continuance of the life of the deceased.

245 A.2d at 180 (citations omitted). See also, Wood v. Detroit Edison Co., 409 Mich. 279, 294 N.W.2d 571 (1980); Groesbeck v. Napier, 275 N.W.2d 388 (Iowa 1979); Duebelbeis v. Dohack, 615 S.W.2d 488 (Mo.App.1981).

I agree with the New Jersey court and would hold, in this case, that “the mere fact of a plaintiffs remarriage should not be kept from the jury.” Dubil, 245 A.2d at 180. To hold otherwise, as the majority has done, would offend the integrity of the judicial process by affirmatively misrepresenting the facts to the jury. Additionally, as the Dubil court pointed out, concealing the fact of a plaintiff’s remarriage may cause “difficulty, in a suit by a surviving [spouse] who has remarried, of examining prospective jurors concerning their possible acquaintance with [the new spouse.]” 245 A.2d at 180, fn. 3.

Therefore, in light of the above authority, I disagree with the majority’s conclusion that the trial court did not err in granting Westfall’s motion in limine to exclude all evidence of plaintiff’s remarriage. Westfall should not have been allowed to misrepresent her marital status to the jury. I do not believe, however, that this constituted reversible error. The jury would not have been allowed to use the evidence of the remarriage in determining Westfall’s damages, and appellant Caterpillar has made no showing that the evidence of Westfall’s remarriage would have served any purpose other than proving damages. Nevertheless, while the trial court’s error may not be reversible, I believe the majority now errs in upholding the trial court’s decision to allow Westfall to misrepresent her marital status to the jury.

I also specially concur in Part IV of the opinion in which the majority has vacated the award of costs and “remanded [the cause] to the district court for a determination of costs to be awarded” under I.R.C.P. 54(d)(1)(D). I.R.C.P. 54(d)(1)(D) requires a party seeking discretionary costs to show that such costs are “necessary and exceptional costs reasonably incurred.” In this case, the trial court stated that it would award plaintiff’s excessive travel costs and witness fees “unless there is a clear showing that they are excessive or clearly not proper.” That standard incorrectly shifted the burden to the party opposing costs, who was required by the trial court to show that they were “excessive and clearly not proper.” The rule places the burden on the party seeking costs to show that they are “necessary and exceptional.” Therefore, the majority correctly holds that “the trial court manifestly abused its discretion by applying the incorrect standard.” Ante at 981.

2 . The minority view holds that, "The possibility of marriage or remarriage is always an element which it is proper for the jury to consider in determining damages in a wrongful death action.” Jensen v. Heritage Mutual Ins. Co., 23 Wis.2d 344, 127 N.W.2d 228, 234 (Wis.1964); Campbell v. Schmidt, 195 So.2d 87, 90 (Miss.1967).