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Varlack v. SWC Caribbean Inc.

filed: February 22, 1977.

KENNETH L. VARLACK, APPELLANT IN NO. 76-1143
v.
SWC CARIBBEAN, INC., D/B/A ORANGE JULIUS RESTAURANT AND BERNETTE CANNINGS, AN EMPLOYEE OF ORANGE JULIUS RESTAURANT, APPELLANTS IN NO. 76-1142



APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS - DIVISION OF ST. THOMAS (D.C. Civil Action No. 76-267-1973).

Seitz, Chief Judge, Gibbons and Hunter, Circuit Judges.

Author: Seitz

SEITZ, Chief Judge.

Defendants appeal and plaintiff Varlack cross appeals from a judgment of the district court of the Virgin Islands.

Varlack was at the time of the incident here in question employed as assistant foreman of a construction firm. Defendant Cannings was the night manager of Orange Julius Restaurant, Orange Julius being a trade name of defendant SWC Caribbean, Inc. In the pre-dawn hours of May 27, 1972, Varlack and a friend, after playing dominoes most of the evening, went to a bar, where they chanced to meet several people they knew. Soon Varlack and a couple of friends decided to go get something to eat. They first tried the Crazy Cow restaurant, but were refused entry, since it was closed. Then Varlack and his companions proceeded up the waterfront to the Orange Julius restaurant. Varlack found the front door locked, but he could see a few patrons left inside. He went around to the service entrance, but Cannings refused to let him in. The two got into a shoving match, in the course of which Cannings struck Varlack with a two-by-four which was used to bar the door. While defendants claim that Varlack only suffered one glancing blow to the head, the district court found that he was hit twice. Defendants contend that after Cannings hit him with the two-by-four Varlack left the restaurant, but saw Cannings through a window and was so enraged that he punched his right arm through the glass, whereupon a piece of the glass fell on the arm and caused a severe cut. On the other hand, plaintiff contends and the district court found that Varlack was so dazed from being hit with the two-by-four that he stumbled into the alley by the service entrance to Orange Julius and fell through the window, thereby injuring his right arm.

The injuries caused when glass fell on Varlack's arm led to amputation about eight inches below the shoulder. The district court, which was the trier of fact, found for Varlack, and awarded $27,552 for loss of past earnings, $111,275 for loss of future earnings, and $75,000 for pain, suffering, disfigurement and embarrassment. It refused to award any damages for future rehabilitative and medical expenses.

I. THE APPEAL

A.

Defendants have raised six allegations of error on their appeal, the first of which is that the district court erred in granting plaintiff's motion to amend the Complaint to name Cannings rather than "an 'Unknown' Employee of Orange Julius Restaurant" as a defendant, and in ruling that the amendment related back to the date on which the Complaint was filed because it satisfied the conditions of F.R. Civ. P. 15(c).

We note preliminarily that Cannings argues that he was unrepresented in the proceedings below on the motion to amend. But we think a fair reading of the record shows that the district court found that Cannings was represented by counsel for SWC Caribbean. There has been insufficient showing that this finding was in error.

While Varlack was injured on May 27, 1972 and his arm was amputated within 10 days, the Complaint captioned "an 'Unknown' Employee of Orange Julius Restaurant" was not filed until June 19, 1973. The applicable statute of limitations is two years. 5 V.I.C. ยง 31. On October 14, 1975 - after the statute of limitations had elapsed - plaintiff made the present motion to amend the Complaint. This motion was answered by "counsel for defendant Orange Julius Restaurant", who said that they had no objection to inserting Cannings' real name, but did object to relation back. The motion was again raised early on October 28, 1975, the first day of trial. The district court decided not to make its decision at that point, however. After Varlack and one other witness had testified, the court did finally hold a voir dire of Cannings on the amendment question, and concluded that the requirements of F.R. Civ. P. 15, including Rule 15(c), were satisfied.

Replacing a "John Doe" caption with a party's real name amounts to "changing a party" within the meaning of Rule 15(c), and thus will only relate back if all three conditions specified in the Rule have been satisfied. Craig v. United States, 413 F.2d 854 (9th Cir. 1969). First, the pleading as amended must relate to the same "conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Plaintiff must also show "within the period provided by law for commencing the action against him, the party to be brought in by amendment . . . has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits," and that he "knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him."

Defendants, of course, have not contended that the Complaint as amended relates to a transaction other than the one set forth in the original Complaint. They do contend, however, that plaintiff has not satisfied the other two conditions in Rule 15(c). We may not reverse the district court's conclusion that these conditions have been met unless this conclusion is clearly erroneous. In other words, we must be "left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 746, 68 S. Ct. 525 (1949). We conclude that under this standard, the district court's findings are amply supported by the evidence.

As to notice of the institution of this action, Cannings testified at trial that in "early" 1974 he saw a "paper" [a copy of the Complaint] which said "damages filed against Orange Julius and a [sic] unknown employee." While, as the district court noted, Cannings was not definite as to whether he knew of the suit before the statute of limitations expired, in late May of 1974, we find no basis for overturning the court's conclusion that since Cannings said he saw the "paper" "early" in 1974 he may be taken to have known within the requisite period of time.

The third prerequisite for relation back under Rule 15(c) is that "within the period provided by law for commencing the action against him, the party to be brought in by amendment . . . knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him." Cannings testified that he knew there was a suit against "an 'Unknown' Employee of Orange Julius Restaurant." He also admitted that the phrase "Unknown Employee" referred to him, even though it didn't use his name, and that if his name had been captioned he would have been one of the persons sued. We think this testimony was manifestly a sufficient basis on which the district court could conclude that the final condition for relation back under Rule 15(c) was satisfied.

B.

Defendants' second argument is that the court violated F.R. Evidence 615 and the constitutional guarantee of due process to the extent it sequestered defendant, Cannings and Cyril Creque, the principal officer and owner of defendant SWC Caribbean, Inc.

F.R. Evidence 615, which was applicable to this trial, provides that:

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his case.

1. Early on the first day of trial, Varlack's counsel requested that the witnesses be sequestered. When the court granted this request, counsel for SWC Caribbean, Inc. asked that an exception be made for Cyril Creque, whom he described as "a former owner of the corporation." The court refused, saying that "if he is going to testify to the merits of the case, he must be sequestered." After Creque had testified, the court reversed its earlier decision and allowed him to sit at the counsel's table, saying that "I did not realize you were the owner of the place."

We conclude that SWC Caribbean's reliance on Rule 615 is misplaced. Since the company is not a natural person, it cannot make use of Rule 615(1). Moreover, sequestering Creque did not violate SWC Caribbean's rights under Rule 615(2), since the description of Creque by SWC's attorney as "a former owner of the corporation" did not designate him with sufficient clarity as a corporate representative. Finally, SWC Caribbean did not demonstrate on this record that Creque's presence was "essential to the presentation of [its] case" within the meaning of ...


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