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DIFIORE v. CASCO NORTHERN BANK3/12/1993
interpretation by one who can understand him and because he lacked any reasonable ability to remember the matter. The determination that a witness is competent to testify under M.R.Evid. 601 is reviewed for clear error. State v. Hussey, 521 A.2d 278, 280 (Me. 1987). Moreover, " he tendency is increasingly to resolve doubts in favor of letting the [factfinder] hear the evidence and appraise its credibility." Field & Murray, Maine Evidence ยง 601.2, at 193 (1987). Here the trial court determined, after both attorneys conducted a voir dire of the witness, that DiFiore was competent to testify because the trial court was able to understand his answers.
The Bank's contention that DiFiore was not competent to testify because he could not adequately remember the event at issue is likewise unpersuasive. Although the Bank cites several examples during DiFiore's testimony when he could not remember the information he was being asked to recall, he generally testified about the incident in question and the damages he suffered as a result thereof. We find no clear error in the trial court's determination that DiFiore was competent to testify.
In addition, the Bank contends that the trial court abused its discretion in appointing Alfred DiFiore, the plaintiff's son, to assist him at trial. We disagree. Under M.R.Civ.P. 43(l), " he court may appoint a disinterested interpreter of its own selection, including an interpreter for the deaf." The present situation, however, does not fall within the typical "disinterested interpreter" rule. In the special circumstances of this case, only persons who are more likely to be somewhat interested are able to assist DiFiore in developing his testimony. This differs markedly from a typical situation where a person is appointed to interpret a foreign language or sign language. The action of the trial court in permitting the plaintiff's son to assist him is more akin to the exercise of discretion to permit leading questions.
III.
The Bank also argues that the trial court erroneously found that DiFiore had a permanent impairment. A factual finding is not clearly erroneous if there is competent evidence in the record to support it. Harmon v. Emerson, 425 A.2d 978, 982 (Me. 1981). In this case the permanent injury found by the court is distinguishable from a permanent impairment. Unlike a finding of specific loss of use of the knee or an incapacity that would permanently prevent DiFiore from performing specific tasks, the court simply found that there was a condition which, because of DiFiore's refusal to take the risk of surgical correction, was inevitably permanent. That factual finding was not clearly erroneous.
IV.
The Bank next argues that the $40,000 damage award was clearly excessive and unsupported by competent evidence in the record. "As a general rule, the assessment of damages is within the sole province of the [factfinder]." Michaud v. Steckino, 390 A.2d 524, 536 (Me. 1978). We have previously stated that generally the ultimate damage award should be left to the factfinder's "sound sense and good judgment as seems to [the factfinder] to be fairly compensatory of the injured party's injuries." Id. at 536-37.
Here there is no evidence that the factfinder acted under any bias, prejudice, or improper influence, or reached its verdict under some mistake of law or in disregard of the evidentiary facts. See id. at 536. There is evidence in the record, however, that DiFiore suffered immediate and ongoing pain, that his lifestyle has been greatly diminished, that he now lives with the constant fear that he will be confined to a wheelchair, and that he endured a great deal of pain during the medical treatm
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