November 5, 1964; As Amended December 10, 1964 .
Before BIGGS, Chief Judge, and HASTIE and GANEY, Circuit Judges.
The plaintiff-appellee, Arthur W. Niedland, sustained injuries to his back when a car which he was driving was driven into by a Post Office vehicle operated by an employee of the United States.He sued the United States under the Federal Tort Claims Act, 28 U.S.C.§ 1346(b). His wife, Margaret, sued for loss of consortium. The United States conceded liability. Niedland's damages were fixed at $9,463, and Mrs. Niedland's at $750. The United States has appealed the judgment in favor of Niedland seeking a new trial or to reduce the award for the reasons stated hereinafter*fn1
The trial court found the following on ample supporting evidence. Niedland received a whiplash injury to his back and particularly to his neck. This injury was a moderate one, neither light nor severe. Following the accident he could lie down in bed only with difficulty.Two days after the accident, while still suffering pain, discomfort, extreme constriction in his neck and back, and headaches, he consulted an orthopedic surgeon. The surgeon diagnosed his condition as a sprain or strain of the muscles and ligaments of the spine, and sent him to the Delaware Curative Workshop for therapy. At the end of four months Niedland's condition had improved to the point where he was discharged from further treatments at the Workshop. At the time of the trial, in the words of the court below, "[He] seems still to be suffering intermittent headaches and some restriction of movement in his back and neck." The trial court stated: "It is highly unlikely that his injury is permanent and it should gradually disappear.", and to "recover completely he must cease babying himself."
Prior to his accident Niedland owned the franchise to, and was the sole operator of, the Arthur Murray School of Dancing in Wilmington, Delaware. He both managed the school and taught dancing. He employed three to four instructors. Niedland's teaching of pupils and his training of instructors required him to keep abreast of all current dances and also to be in good physical condition since he had to be able to execute the violent twists and turns called for by modern dance routines. Niedland, claiming to be too ill and restricted in his movements to teach, hired a male assistant to whom he paid about $10,000 annually. For some time prior to the trial Niedland had been averaging only about two hours per day in his studio and on many days did not go there at all, leaving most of its operation to his assistant.
Despite residual headaches and some restriction of movement, Niedland for some time prior thereto had been able to attend his studio each day on a full time basis, to attend to all the details of managing it, to teach beginning pupils, and to train instructors in the less strenuous dance movements. Niedland failed to perform these duties and in so failing, he disregarded the advice of his physician, a reputable and outstanding doctor in the community. He employed a full time assistant who, as a practical matter, ran the business, enabling Niedland to spend a large part of his time away from his studio. He made no substantial attempt to minimize his damages. In the light of the advice of the doctors he was not justified in maintaining a full time assistant beyond the date of his discharge from the Delaware Curative Workshop and from that time he was entitled to maintain an assistant only for the purpose of having someone available to perform the more strenuous movements required in teaching advanced pupils, training instructors and giving exhibitions. Niedland did not adduce proof to enable the trial court to ascertain the reasonable cost of these limited services. At the time of the trial he had been advised by the defendant's doctors that he was in condition to resume the more violent forms of dancing in order to see if he was capable of executing them and that to attempt to do this would cause him no harm. While Niedland would not commit himself to the more violent forms of dancing, the record shows that nonetheless he engaged in some strenuous sport activities in the Spring and Summer of 1963.
Finding of fact "No. 25" is as follows: "Damages to plaintiff for pain and suffering from the date of the accident until recovered, for increased salary [sic] as the result of having to hire an assistant manager and for medical expenses, $9463.00."
The court made conclusions of law, pertinent to this appeal, as follows: "(2) Plaintiff, Arthur Niedland, incurred compensable injuries as the result of defendant's negligence;" "(3) As of the date of plaintiff's discharge from Delaware Curative Workshop, there was a complete failure of proof as to how any damages to plaintiff's business could be calculated flowing from the gradually decreasing residual pain and discomfort which plaintiff will suffer until complete recovery;" "(4) Plaintiff, Mr. Niedland, failed to minimize his damages;" "(5) Plaintiff, Mr. Niedland, is entitled to a judgment for money damages, for pain and suffering until complete recovery, for loss due to increased salary paid to an assistant and for medical expenses."
As has been indicated, at the trial evidence was offered by Niedland as to his need for an assistant. There was no objection to the receiving of this testimony when it was offered. Evidence was also offered by Niedland as to his physical condition, proving that he had suffered loss of earning power and was unable to transact his business. No objection was made by the defendant to the receiving of this evidence when it was offered. There was also testimony tending to prove that the loss of Niedland's earning power and his inability to carry on his business was temporary. Just prior to argument and after the close of testimony in the case, the defendant's counsel stated that he objected to any argument respecting the cost of hiring an assistant manager or any argument as to the loss of earning power by Niedland because these items had not been specially pleaded. The court permitted the argument to proceed, nonetheless.
The court then entered judgment in favor of Niedland as indicated. Following that judgment the defendant moved, in the alternative, to amend the judgment or for a new trial, citing Rule 52 (b) and 59, Fed.R.Civ.Proc., 28 U.S.C. Two of the grounds of the motion were to mitigate the amount of the judgment in the defendant's favor. The third part of the motion was for a new trial. The motion was denied and the appeal at bar followed. The grounds of the appeal are in substance the same as those set out in the motion. We will discuss first the grounds for mitigation of damages and will then deal with the ground asserted for a new trial.
The government asserts that the court below erred in awarding damages for loss of earning power and for "loss due to increased salary paid to an assistant * * *" because the plaintiff failed to specifically plead these items of special damages in accordance with Rule 9(g) of the Federal Rules of Civil Procedure*fn2 At the outset, it should be noted that both of these alleged errors relate to the same award.In its findings of fact the district court found that the plaintiff was justified in hiring a full-time assistant for the period beginning when the assistant was hired and ending upon Niedland's discharge from the Delaware Curative Workshop. The court found that although upon that discharge Niedland became entitled to damages for a part-time assistant to assist in the more strenuous dance routines, he had failed to show how much these damages were. In the district court's conclusions of law, the damages awarded for the salary paid to the assistant clearly related only to that period designated in the findings of fact in which the district court found that Niedland was entitled to damages for a full-time assistant. In the district court's opinion denying the government's motion to amend the judgment, the court for the first time used the term "loss of earnings" and "loss of earning power."*fn3 This reference to loss of earnings could and can relate only to the salary paid to the assistant. To the extent that Niedland had to employ a competent person to assume his duties, his earnings were to that extent necessarily decreased. The limited period for which the district court found a loss of earnings related to the period commencing with the hiring of the assistant and ending upon Niedland's discharge from the Delaware Curative Workshop. See note 3, supra.
The position of the United States is that Niedland is precluded from recovering even this limited amount because he failed to specifically plead it as an item of special damage. It is clear that even under the more generalized notice pleadings of the Federal Civil Rules, special damages must be specifically pleaded. See note 2, supra. It is equally clear that expenditures for the hiring of a substitute are special damages, under both federal and state law*fn4
Niedland did not specially plead loss of earnings or damages for the hiring of an assistant, but he did allege in paragraph 6 of the complaint that as a result of his injuries he "was prevented from transacting his business. * * *" We need not decide whether this allegation was sufficient under Rule 9(g), since this is not a case arising either by a pre-trial attack on the pleadings or an attack on the admissibility of evidence*fn5 As we have stated, just prior to arguent and after the close of testimony in the case, the defendant's counsel stated that he would object to any argument respecting the cost of hiring an assistant manager because this item had not been specially pleaded. The defendant did not assert that it was surprised, nor did it seek a continuance to present evidence in rebuttal. It is apparent, therefore, that a different standard should be applied under the circumstances at bar as will appear hereinafter*fn6
Niedland testified on direct examination and without objection by the United States that he was forced to hire an assistant, how much he paid that assistant and that his business could not afford two managers. On cross-examination, counsel for the United States questioned Niedland as to the need for an assistant and the rate of pay which should be allocated for the management duties that the assistant performed for Niedland. In the cross-examination of Niedland's medical witness and on direct-examination of the government's own medical experts, the United States made full inquiry as to the plaintiff's need for an assistant and the extent of that need. It is obvious that not only was there no objection to the introduction of this evidence, but the entire issue was vigorously litigated by the defendant. In fact, the government so well defended this claim that it succeeded in ...