STATE v. PHILLIPS

RABINOWITZ, Justice.

These appeals arise out of an automobile accident which occurred in December 1966, approximately five miles south of Anchorage on the Seward Highway. At 8:30 a.m. on December 23, 1966, decedent Patricia Phillips was driving towards Anchorage. With her in her 1965 Corvair Monza was her four-year old daughter.

Thereafter, E. Bradford Phillips, as administrator of the estate of his deceased wife, individually and as next friend of their daughter Sheila Toi Phillips, together with Lester Syren, sued the State of Alaska and three officials of the Department of Highways of the State of Alaska. After a lengthy trial without a jury, judgments were entered against the State of Alaska and cross-appellees in favor of Lester Syren, Sheila Toi Phillips, and E. Bradford Phillips individually, as administrator, and as next friend. This appeal and cross-appeal followed.

LIABILITY.

As to liability issues, the gist of the State of Alaska's appeal is that the trial judge erred in his findings of fact and conclusions of law in holding that the state was negligent, and further erred in deciding the issue of Patricia Phillips' contributory negligence in her favor. This court's scope of review of judge-tried cases has been previously delineated in Civil Rule 52(a) and numerous opinions.2 It is now well established that our review is limited to a determination of whether the trial court's findings are clearly erroneous. A finding is not clearly erroneous unless from a review of the entire record we are left with a "definite and firm conviction that a mistake has been made."3

We have also held that where the trial judge's findings are based on nondemeanor sources, such as documentary evidence, deposition testimony, or transcribed testimony, our scope of review is broader than under the clearly erroneous standard.5

In this case, appellant State of Alaska argues that we should employ a broader type of review than is exercised under the clearly erroneous criterion because of the presence of "substantial documentary and demonstrative evidence" in the record which renders the oral evidence pertaining to liability issues extremely doubtful.6

We do not believe that the record in the case at bar presents an appropriate instance for employment of a standard of review different from the clearly erroneous test. Adhering to our normal scope of review, we hold that the trial court's findings of fact concerning the state's negligence and decedent Patricia Phillips' lack of contributory negligence were not clearly erroneous. We therefore affirm the trial court's conclusions of law based on these findings of fact.

In his memorandum decision, the trial judge said in part:

Appellant State of Alaska had the burden of proving by a preponderance of the evidence that Patricia Phillips was contributory negligent.7 Our study of the entire record shows that there is ample evidence to support the trial judge's findings of fact, and inferences from the evidence, regarding Patricia Phillips' alleged contributory negligence. Admittedly, the trial court's memorandum opinion contains several confusing references to the presumption of Patricia Phillips' due care, and the legal effect of her having left her lawful lane of traffic in violation of pertinent highway regulations. Viewed in isolation, the departure of decedent's vehicle from its lane of traffic constituted evidence of contributory negligence under Rogers v. Dubiel,8 so rendered inappropriate reliance on any presumption of due care. In the case at bar, however, there is ample evidence that antecedent negligence on the part of the State of Alaska caused Patricia Phillips' vehicle to leave its assigned lane of traffic. This same antecedent negligence, combined with the then icy condition of the Seward Highway, furnished substantial evidence of excuse for decedent's violation of applicable highway regulations, overcoming the inference of contributory negligence from violation of highway regulations.

We need not summarize the mass of relevant evidence pertaining to the primary issue of the State of Alaska's negligence and subsidiary issues of notice, standards of highway maintenance, and causation. It is sufficient to state that our study of the entire record disclosed that the state's negligence was shown by a preponderance of the evidence. In this regard, the trial judge found in part that at the location of the Phillips' accident

This rut is the same highway defect alluded to by the trial judge in his findings pertaining to contributory negligence. In regard to this rut, the record shows that the state allowed this condition to exist in one of the most heavily travelled sections of highway in the State of Alaska. The record also supports the trial court's findings that due to the physical characteristics of this section of the highway, a vehicle travelling in the direction of Anchorage would, given icy surface conditions, have a tendency to drift to the right and go off the paved portion of the highway and onto the shoulder. Once on the shoulder, the right wheels of the vehicle could become engaged in the rut causing the vehicle to go out of control. Review of the evidence in the case at bar also leads to the conclusion that the State of Alaska had prior notice of the dangerously defective condition of the Seward Highway in the location of Phillips' accident; that the state failed to undertake appropriate reasonable measures to alleviate existing dangerous conditions; that the state's failure in this regard constituted a breach of the duty of care it owed to decedent Patricia Phillips, Sheila Toi Phillips, and Lester Syren; and that this breach of duty was the proximate cause of the fatal accident. We therefore affirm the trial judge's resolution of liability issues.

Two other specifications of error relating to issues of liability remain. Appellant State of Alaska has specified as error the admission into evidence of testimony concerning a fatal accident which occurred on the Seward Highway one week prior to the Phillips' crash approximately one mile north of the site of the Phillips' accident. Appellant's position is that evidence of another accident is only relevant to show a dangerous or defective condition where the other accident took place under substantially similar conditions as the accident in question.9

In his memorandum decision, the trial judge referred to the other accident in the following manner:

In denying appellant's motion to strike evidence relating to this other fatal accident, the trial court ruled

From the foregoing, it is apparent that the trial judge did not use evidence of the Vasconi accident in his determination of the cause of the Phillips' collision. We therefore find no merit in appellant's objections to evidence relating to this other accident. Such evidence bore relevance to the issue of appellant's standards of maintenance on the more heavily travelled portions of Control Section 113124 (the section of the road where the Vasconi and Phillips accidents took place), and had further relevance to the question of whether appellant had notice that its standards of maintenance were insufficient for this portion of Control Section 113124.

Appellant's remaining specification of error concerns opinion testimony of Alaska State Trooper Costlow. After the trial judge found him qualified, this witness was allowed to testify that in his opinion the Phillips' accident was caused by the rut alongside the pavement. Appellant claims the admission of the opinion of an investigating police officer, not an eyewitness, as to the cause of the Phillips accident was prejudicial error.10 In a recent opinion concerning qualifications of expert witnesses, we said:

In addition to the necessity of determining an expert witness' qualifications, the trial judge must further determine whether the trier of fact could receive appreciable assistance from the opinion of the expert witness.12 Greater liberality is accorded to the reception of opinion evidence in non-jury cases.13 Guided by the foregoing rules, we hold that it was not prejudicial error for the trial judge to have admitted the opinion testimony of Officer Costlow.14

DAMAGES.

In the main appeal, the State of Alaska argues that the trial court erred in computing the dollar value of goods and services which decedent Patricia Phillips would have consumed over the remaining period of her life expectancy. The court employed the figure of $235 per month in its computation of this deductible item. Cross-appellants have conceded that this deductible item should have been computed at the rate of $345 per month for consumption of goods and services.15 Upon remand, the trial court shall recompute this deductible item using the $345 per month figure.

The crux of the cross-appeal is that the damages awarded were inadequate because the trial court "went outside evidence presented at trial." More particularly, it is contended that the court's findings were clearly erroneous because damages were not awarded for the following: increased services Patricia Phillips would have rendered to her husband's insurance business after their daughter had reached majority; for the expenses of a cleaning lady in addition to a housekeeper until Sheila Toi Phillips' majority, and for a housekeeper from such date until the death of E. Bradford Phillips; for services Patricia Phillips would have rendered to E. Bradford Phillips in furtherance of his political career.

Cross-appellee State of Alaska did not offer any evidence on the damages issues now specified as error in the cross-appeal. The evidentiary basis for the three disputed areas of damages is found primarily in the testimony of E. Bradford Phillips and of Philip Eden, an economist and statistician who qualified as an expert on damages.

Study of the entire record has led us to the conclusion that the damages awarded were neither excessive nor inadequate. Under Alaska's wrongful death statute, broad discretion is vested in the court or jury regarding damage awards. Under our act, the damages recoverable are limited "to those which are the natural and proximate consequence of the negligent or wrongful act or omission of another."16 In fixing the amount of damages, the court or jury is to

Upon consideration of the pertinent portions of the record, we are of the view that the trial court did not err in its award of damages for decedent's potential contributions to E. Bradford Phillips' insurance business, and for housekeeper-cleaning lady services. To a significant degree the evidentiary foundation for these two disputed damage subjects rests upon assumptions and projections embodied in the opinion testimony or cross-appellants' damage expert. The weight to be given to expert testimony is within the province of the trier of fact.18 Given the broad mandate of AS 13.20.340(c), we affirm the trial court's award of damages for loss of Patricia Phillips' services to her husband's insurance business and for housekeeper-cleaning lady expenses.

We affirm the trial court's resolution of the damage issue pertaining to the political services Patricia Phillips would have rendered to E. Bradford Phillips. Study of the court's memorandum opinion has convinced us that the trial court included the value of these services in its award of $50,000 damages for loss of consortium.19

PREJUDGMENT INTEREST.

Cross-appellants' final specification of error is that the trial judge failed to award interest on the damages recovered from the date of decedent's death until the date of judgment.20 Prior to 1965 the prevailing party in an action against the State of Alaska was entitled to interest "only from the date of judgment."21 In the Wright Truck case,22 decided in 1965, we said that the prohibition against prejudgment interest "can easily work an injustice on a party who has contracted with the state,"23 and suggested to the legislature that it consider amending the statute. Two months later, the legislature acted on this suggestion, replacing "only from the date of judgment" with "from the date it [the amount found due from the state] became due."24 The statute, AS 09.50.280, now reads:

Whether cross-appellants are entitled to prejudgment interest turns on whether the damages awarded in the wrongful death action became "due" at the time of Patricia Phillips' death, or at the time judgment was entered. Alaska's general interest statute, AS 45.45.010, uses language similar to AS 09.50.280. In regard to the legal rate of interest, AS 45.45.010(a) provides in part: "The rate of interest in the state is six per cent per year and no more on (1) money after it is due * * *." Since AS 09.50.280 and AS 45.45.010(a) (1) delimit time periods during which interest runs in the same words, they are in pari materia, so "due" should receive the same construction in both statutes.25

In reaching the conclusion that cross-appellants are entitled to prejudgment interest on damages awarded in the wrongful death action from the time of Patricia Phillips' death, we find the legislature's 1965 amendment to AS 09.50.280 highly significant.

It appears that judicial precedent prior to 1965 had construed our general interest statute, AS 45.45.010, as allowing prejudgment interest only in those instances where the amounts claimed were liquidated.26 We think the legislature's 1965 amendment to AS 09.50.280 evinces an intent that prejudgment interest be awarded more liberally than prior judicial interpretations of AS 45.45.010 would have called for. When the legislature determined that interest should run against the state from the time amounts were due rather than from the time of entry of judgment, it did not draw any liquidated-unliquidated distinctions such as were employed in previous decisions under AS 45.45.010. We believe this action on the legislature's part to be a manifestation of sound policy, for our own study of the problem has led us to the conclusion that the liquidated-unliquidated common law distinction lacks a persuasive rationale.

Courts in other jurisdictions and commentators have over the years been moving away 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.27

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, therefore, the amount later adjudicated as damages is immediately "due" in the sense of AS 09.50.280 and AS 45.45.010(a). All damages then, whether liquidated or unliquidated, pecuniary or nonpecuniary, should carry interest from the time the cause of action accrues, unless for some reason peculiar to an individual case such an award of interest would do an injustice. We believe this construction is in accord with the legislative intent manifested in its 1965 amendment to AS 09.50.280.28

The following hypothetical case illustrates the injustice of denying prejudgment interest. Suppose A inflicts precisely the same amount of damage of any type on B and C at the same moment, evaluated by juries as $1,000 each. If C wins his judgment a year later than B and does not get prejudgment interest for the year, C recovers less than B for the same injury; C has been deprived of the use value of $1,000 for one year while B has enjoyed the use value. Interest is the market, or in the case of the legal rate the legislative, evaluation of the use value of money. B obviously has not gotten too much for he had a right to be made whole immediately upon being injured, and B and C should get the same amount for the same injury, so C must have gotten too little. Only by awarding prejudgment interest from the time the cause of action accrues, when a plaintiff is entitled to be made whole, can the sort of injustice which happened to C in the hypothetical case be avoided. We are also influenced by the policy consideration that failure to award prejudgment interest creates a substantial financial incentive for defendants to litigate even where liability is so clear and the jury award so predictable that they should settle.

In light of the foregoing, we affirm the trial court's determinations that the State of Alaska was negligent and decedent Patricia Phillips was not contributorily negligent. The case is remanded for recomputation of the value of the goods and services decedent Patricia Phillips would have consumed over the remaining period of her life expectancy. This deductible item is to be computed at the rate of $345 per month. The trial court is also directed to award interest on damages recovered in the wrongful death action from the date of Patricia Phillips' death until the date the amended judgment is entered. The trial court's resolution of all other damage issues in the case at bar is affirmed.