Caley v. Manicke

Kro- Smith v. Co., supra; v. International Mfg. Hulke not, do under & We Co., supra. ger Grocery Baking the amount palpably consider circumstances, so excessive. affirmed. will, accordingly,

The judgment Affirmed. concurs.

WEIGHT, J. concurs. SPIVEY, J. Daniel Manicke, Appellee, Charles v. Caley, Appellant. 11,423.

Gen. No. First Division. District, Second 23, 1961. February March 30, denied 1961. Rehearing Aurora, appellant. & Sears, Tyler, Streit & Ozmon, Chicago, appellee. Blowitz P. J. SMITH, recovered injuries sued for personal

Plaintiff errors: assigns following $20,000.00. Defendant issue of proxi- of evidence (1) Striking going (3) mate diem’ cause; (2) ‘per argument; Plaintiff’s Prej- therewith; (4) The use of a chart in connection Instructions. udicial statements argument; (5) with particular will them in that order discuss We first emphasis on the three. is somewhat involved. cause issue proximate defendant plaintiff, cross-examination

During elicited admissions that he had been involved in auto- mobile accidents both before and after the occurrence place April sued on. This occurrence took on 16, plaintiff driving while was to work. The evidence crossing showed that after an intersection defendant resulting had crashed into him from the rear in severe “whip-lash” injuries. The cross-examination, to which objection, timely made is as follows: you

Q. Now, around the first of March had an accident, is that correct, before this one? you going up

The Court: Are to connect it ? Defendant’s Counsel: Yes,lam. stopped sign. bumped

I was at a I Henry pushed my rear a little trunk handle J — only damage in and that was it. The the handle of the trunk. was around pounded

I could have myself, imprint that out handle. but still left the of the pounded I some of it. following directing

Q. Now, this accident, and your April, you attention to were involved in an accident on that occasion on Eoute 62 and Highway? Busse up

The Court: Connect it ? your Defendant’s Counsel: I Sure honor. am, my headlight A. Yes. On that occasion front was struck. . . . happened,

Q. After this accident didn’t an acci- your happen you dent in home where fell on the rug your and landed on back? A. No sir. offered no to “connect” these evidence Defendant plaintiff’s injury, argues, accidents with and instead

326 plaintiff’s with own in connection that when viewed testimony, connection there is sufficient medical standing alone, there is a sufficient that even shown, duty relationship, event, in no devolved and that up,” him burden of on “to connect it because the proximate always proof the cause with on issue of plaintiff and never shifts. The trial court dis- testimony jury agreed, struck the and instructed the says disregard doing so, it. Defendant that improperly shifting proof was court the burden of directing his shoulders and was a verdict effect, against proximate him on the is, issue of cause, telling that the court that these accidents nothing plaintiff’s injuries had to do with and, plaintiff the same token, had, as a matter relationship shown a law, causal his in- between juries argues and the accident sued on. Defendant also plaintiff by this redounded to the benefit of heightening credibility medical witnesses. general proof rule is that the burden of party rests on the who has the affirmative of the is pleadings, sue, as determined usual employed test to determine on which side the burden proof party lies, is to ascertain which would be entitled to if verdict no evidence were offered. going While the burden of with forward the evidence party party, proof shift from the burden of during never shifts the course of the trial and remains party asserting on the the affirmative of the issue. Noyes App. v. 310 Ill. Gold, 1, True, NE2d 1. connecting up burden of these ‘before and after’ oc contributing (before), as currences, either or interven ing (after) causes, devolved on but this defendant, shifting proof. phrase is not the burden of To way, duty another because did not have a negate affirmatively part of his case the causal relationship between these ‘before after’ occur- saying on, and the one sued

rences plaintiff demonstrating of was relieved of burden injuries proximately by were caused that his April measure, 16. In like fact that occurrence of successfully mean bore this burden does not proof that it shifted. It not. The burden of then did right giving him is not cast on a defendant in defending prima against himself facie if case, proof plain- burden the defendant means that the establishing tiff relieved from his case at the onset. Deposit Uptown Company,

In 21 Hederick v. Safe App.2d quotation Ill. 159 NE2d there is a 515, 58, Thayer’s Preliminary from Evidence, Treatise on 378, neatly summarizes the situation: going see that the burden of with

“We forward may side; the evidence shift often from side to duty proposition establishing while the always with the actor and never shifts.” pointed Cleary, And as out Professor Edward W. (1956), Handbook of Illinois Evidence the burden proof actually 70): aspects (page “(1) has two producing particular burden of mat evidence as to a (2) persuading ter, the burden of the trier of Egbers, Egbers fact as existence thereof. v. (1898).” 177 Ill. 52 NE He states: further producing “The burden of from evidence shift party party progresses, as the case but the burden persuasion never shifts.” part plaintiff’s

Proximate cause was a case. It indispensable was as the elements of defendant’s negligence, plaintiff’s damage. freedom therefrom, plaintiff’s it, Without action would have But failed. proof when he has borne the burden of and estab- necessary lished the material make out elements certainly right, a case, it is then the defendant’s but duty pnt This not shift on his defense. not his —to ing proof. cannot be said to have burden of One the pleases. pick up or as he a if one burden Obviously negative causation, there of if is evidence according but the law in it, a defendant should show privilege going him forward in no wise shifts the of proof law as the knows that to him the burden of phrase. the of Trus In Behnke v. President of Board 366Ill. tees, 232, NE2d it is stated: proof’ phrase ‘burden is a much

“The abused tendency term because it has the been courts lawyers phrase loosely and either to use to mean the

(1) establishing the need of the existence by preponderates of a fact or facts evidence which legally (2) degree; to a determined or the task resting upon party litigant, any particular a at during prima time trial, create facie case destroy in his own favor or to one when created opposing litigant. ‘Burden of Proof’ should be restricted to the first situation, and burden of going forward with evidence is a more exact ex- pression denominating to use in the second situa- tion.” argues

Defendant that these ‘before and after’ oc- currences should have been left in for consideration jury; “that where there could be more than damage plaintiff’s one cause it is the burden prove which one caused it”; “that where two causes damage, plaintiff could be the cause of the had the proving burden of which one it”; caused “That de- right upon fendant has the to elicit, cross-examination, possible upon other eliciting causes, and such evidence to have all the evidence as to such causes submitted jury.” to These would be correct statements of the law, were it not for the fact evidence elicited on this cross-examination does not establish remotely, possible “cause” or “causes” of

even reasonably injuries. plaintiff’s infer could No or of them were incidents that one both from these injuries plaintiff on. In short, sued related to the testimony was no nexus. elevate both, as to there To ques- rear-end accident sometime before the bumped, bending han- a trunk had been tion and before the onset that after the accident dle, of a more serious lower-back

complaint, front head-light contributing status of struck, the. intervening for submission to triers suitable causes, relevancy re- misread standards fact, is to admissibility. quired pre-conditions That requirement same on the defendant devolves plaintiff initially presenting case, as on extent proof, of or does not shift the burden does, which it indeed question a have with it. It is anything to do simple. relevancy, pure legit Relevancy has a describes evidence that given proposi tendency prove disprove a imate (See pleadings. by material shown tion that is Wigmore as 2.) interven That Evidence, Ed., on 3d Sec. ing contributory the issue are material to causes implicit very proximate nature of of in the of things, cause in actions and taken as a matter of course They propositions that material this kind. are proved. question eviden here is whether the be tiary prove by either one did

facts offered defendant Relevancy a has been defined as them. or both of tendency controversy, ren or to a fact in to establish probable. proposition To more less in issue or der a light probable, in the viewed evidence must be accepted assumptions experience logic, concern ing counts, all these human think on behavior. We reading viewing text in con a whole, the evidence as produce failed to cross-examination text, tendency fact establish that had a evidence plaintiff’s proof proximate render would prohable. cause less province

Nor court’s action invade the did the directing jury, a contends, defendant ver testimony lending greater or dict credence to the of the medical and his witnesses. Matters improperly in evidence should be stricken. If some hardship may attach to that act, one induced who grounds complaint. such action And has little possibility exactly what occasioned Court’s suggested by insistence that the evidence the initial questions up.” be “connected In each situation, ex amining gave counsel his assurance that it would be. partake When he failed to make such examination surely complain. of the relevant he cannot He was put guard on that such action would be taken if he implicit query failed. Such action was in the from you going up?” the bench: “are at the to connect it Failure very least would occasion an instruction to dis regard. Surely in this when context, warned ad present seriously vance, his alarums cannot be con sidered. imply

We do not mean to the cross-ex improper, beyond scope amination was of di rect. It was not. It was directed towards material issue. The trouble is that while it started it never damage party’s arrived. And when risk of to one case apparent, questioning up becomes from a line probability tending prove to then lacks the disprove anything material, the court should obtain sought, an relevancy assurance, if will be estab Granger Turley, App. lished. v. 20 Ill. 2d 488, 156 (1959). NE 2d 610 If the assurance turns out to be empty gesture, an that which has been shown should lingering impact be stricken may to remove what it say, just have. It doing is no answer that in that, possible psychological may attendant harm ensue to the assurer’s case. We doubt that if does, but it complaint. does, no cause for has perfect example slip rug. A involves the on the Seemingly prejudice negative no would for ensue, inquiry. Notwithstanding, answer “slip” ended hanging remained, in the courtroom air. To might the untrained ear it seem that this incident something plaintiff’s inju- have had to do with plaintiff’s thought ries. At thinking least so, counsel right, duty, so, it was his indeed to move striking to strike. Relief was accorded in in- it and structing disregard it. Defendant does complain merely not of this action, and we recite it purpose showing for the that what started out as up by injecting valid cross-examination ended ir- improper, possibly prejudicial relevant, fact in- testimony, abundantly to the case. toAs this such is upon analysis, clear, and and to the same extent, and testimony prior in like vein, is the as to and subse- quent accidents. plain-

We next turn to defendant’s contention that opening argument prejudicial. tiff’s While the argument was not novel in the sense that the trial bar would be less than astounded, it novel far as so Appellate Courts in this State are re- concerned. We “per fer argument” to what we shall call, suffering. apparently type Defendant sensed that of ar- gument objected prior was about to be made and to its advent plan plain- that is his Counsel —“if —.” responded: tiff my plans “I don’t make secret about as far closing argument Jury. as the is concerned to the plan ... I do I I use, and believe should be en- plain titled to, a blackboard, but a white sheet paper completely which is blank, and mark it as an exhibit for identification so it can become a demon- in the case, purely of the record part properly for illustration and strative and purposes Jury. to damages demonstrate the question or thereon, figures . I write either . . Anything record, of the but become a number, part to of demonstrating use is for the purely purpose the diffi- interpreting and in Jury aiding complicated questions cult and questions very in this case.” damages the Court instruct request plain-

Defendant’s use a chart write on and not tiff’s counsel monthly, on an argue hourly, daily, weekly, damages basis, was denied. yearly counsel that understood, It was stated indeed, chart and suf- computation used while would not exhibit, marked as fering, go for demonstrative jury, would be used solely “as a skeleton used in the purposes, model we case,” and would be in the record on appeal. included It has been. and it looks like inspected We have this:

14.7 1. Nature Extent $10,000.00

$50,140.90

2. Pain and Suffering

April 16,1956 hours

11,680 11,680.10 510 days 5.100.00 3. Future Pain 8.760.00 4. Hospital Medical 1,288.90 $873.00 $415.90 + Earnings 5. Lost 2,432.00 $ 2,880.00 5,312.00 6. 8,000.00 Permanency 7. Workability fig- promised, writing the counsel commenced

As above. can best savor them in context ures shown We began breaking argument, two- with his period immediately year in- time after the accident allowing eight deducting per day hours, to hours sleeping. for making man was around three dol-

“Now, this twenty job, lars and right? cents an hour on is that twenty an is three cents That dollars you suggested I if I hour. be reasonable to Would you pay suffering that cut his rate of down only give to dollar an hour and one dollar one an hour or eleven thousand six hundred and eighty suffering?” for the dollars two-year period, Having next dealt with this counsel up remaining calculated the time the date of trial: to put let’s it into hours in the last two “Now, years. type Let’s it to a of situ- confine logical say ation. Is it he entitled to to day up today? ten a dollars to That isn’t one dollar suffering. an hour It is less than one dollar hour, that unreasonable? If we said and is fifty-one hundred that, dollars, that would be bring up today.” which would us to thusly, Future handled based expectancy years: on a life of 24.52 days “. . . would at be 8760 $1.00 day figuring day, a at 8760 instead of $10.00 days, you pain. figure would for future have eight give So we would him seven thousand sixty pain.” hundred and dollars for future vein: closed this figures you, “But we total now for these and this is what are recover in this we entitled to suggest you I these And these elements. case, figures. If us a Counsel can show reasonable are compensate way man, him show let better you suggested you. and tried . . . haveWe logical you and a fair verdict show to fifty thousand would be one in this verdict hundred and case ninety forty cents. And dollars and you go some- ahead and show to counsel to I ask thing it.” he can if show else, First, front. on a broad attack is Defendant’s thing as a mathemati- such that there no contends damage amount of to determine the cal formula to suffering. pain paid is Tables and This true. for be pain suffering ascertaining of and do the value for not exist as facts susceptible proof. But the fact pain recompensed suffering in If and is dollars. of is thereby argument, it does furnish a basis for an

so, argument, pain suffering monetary qua have a that and argument. It value. It is not evidence of course. is Argument distinguished presentation is from to be Argument together piecing of evi- evidence. is the ordinary dentiary in rules facts combination with the pain suffering logic and rhetoric. If and were not money logic recompensed in then as a matter of argument logic would be bad. But such is not the situation is because such not the law. plaintiff, complaint,

A in the in instance, first pain pleads damages for in dollars. permits prayer specific law Since the a for a amount, logic, figure then, it in would follow that this could City argued. Railway In be Graham v. Mattoon Com pany, (1908) Ill. 234 84 N. it 1070, E. 1073 approved: so

“ say you, jury, gentlemen We to of the repeat again, shows a case that the evidence weighed who, of a man in sound health pounds ... an man, active whom this corn- employed;

pany permanently trusted this man is injured; $10,000.00 sum of you give in which he asked him his declara- gentlemen fairly tion what have, he should jury.’ objections made these remarks they refer to the amount claimed declaration. do not think that is telling We there objection argument, counsel, valid the what, evidence, under the counsel con- compensation injuries siders fair re- for the ceived.” argued, logical

If the total can be amount what ob- jection components? arguing is there to That such its argument may thought by many per- an be to more be gross arguing suasive than standing reason, amount is no alone, forbid its use. assigned per

True, can no unit value be hour day suffering. obviously There is no saying mathematically m basis that because fact employed paid a man is hour, at he should be $3.20 suffering. hour for because $1.00 But susceptible proof, this ‘fact’ and on that everyone agree, would it does not mean that it cannot argued, for the based, is then as all ar- guments must on the be, evidence—the evidence of suffering plaintiff experienced, which must compensated money. be for in meaning precise. Argu

Let us make our more ments must be based on the evi evidence. Facts in may pieced together argument. dence be to form such argument that not results is evidence. The facts are here that existed and that legally, logically, they money. hence are worth Cer tainly, proper argument if it within the ambit to apply argue given take this fact, the law and for a arriving total, then the method of would, at the total argument proper jury we think, be too. If the can parts? why its Total amounts not whole, hear the necessarily composed lesser amounts. are What they knowing wrong are ? what in argument contends that the further Defendant “unjustifiable places is, he dilemma,” that in an him damages. arguing This issue of into the is forced then dilemma, is, if it be but it not a true, unjustified. mitigation argument in of dam- is ages An not implying successfully made without

can be doing liability. been Trial counsel have admission of why years and we can see no reason it for likely. argument Defendant, here, it less diem renders large part argue than dam- other chose matters thought ages. apparently He that was choice. But negligence the issue be stressed below that argument. should implies now He does make it here. He not have done that because this dilemma could admitting liability. more so without But this is no so certainly than in not other kind. are case of this We going arrogate judgment ourselves counter-argument proper trial counsel toas what a might be, but we are it can and will this, convinced passing, be devised. the verdict We note in that too, ($20,000.00) $50,140.90 less half than the objects shown on counsel’s the chart. Defendant argument but not result. thoughtful argument

A discussion of the (Fla. Arrington, is found in Ratner v. 111 So.2d 82 1959), following assigned favor: and the in its reasons

“(1) necessary That be it is that guided practical consid some reasonable and (2) eration; a trier should not that facts required in the determine matter ab guess; relegated (3) stract, to a blind very yardstick absence contention of a makes the suggestion misleads the counsel’s a of amounts jury questionable (4) one;

337 provide per a foundation for the fails evidence unconvincing, suggestion diem because the reasoning process, that or some must, other appropriately estimate and allow an amount tai particular lored to the evidence in that case as pain other element or such damages; (5) suggestion by the counsel suffering justi that the as to evidence fied allowance of in amount, a certain total or by per figures, present diem does no more than reasoning one method which the trier may employ making facts to aid him in a reason (6) estimate; able and sane that such arguments only are not and are used evidence suggestion; (7) plain illustration and danger suggestion being of such a mistaken exaggeration, danger, evidence is an and such if present, dispelled by charge; can be the court’s (8) when counsel for one side has made argument equally opposing such counsel is suggest free to his own amounts as inferred relating him from the evidence to the condition damages sought.” for which the are 111 at So.2d 89. Mattingly 1960) (Ky. & also L. N. R.

See R. Co. v. S.W.2d 155. agree particular

We with one of the reasons as- signed very Ratner case, that the absence aof suffering, argues loudly standard relative to giving exploring for the rule and counsel full latitude in discussing damages. deny this element of diem To argument use of the ment of the seems to us curtail-

right argument precludes since it persuasive technique, use of a and what is persuade. phrase if does not We that this admit later persuasive lengths. could be carried to absurd All techniques persuasive are not countenanced, but part the techniques and are within remain that novelty proper is argument and are role traditional nonacceptance. certainly for no reason damages prob- suffering are law of in the Pain and non-puni- unique they ably and are non-certain in that Damages they hos- unique for exist. not or tive. But damage, property work, loss of to pitalization, and easily even ex- ascertainable; a few are mention but emplary approximated punitive can awards every law showing In worth. the defendant’s damages compounded are this, suit such varying degrees, “specials,” then so-called defy monetary Pain exactitude. that those elements immediately disability suffering come and future im- that defies have an elusiveness to mind. These dollar and cents. reduction to mediate or even mediate very criteria, lack definitive that reason, For no monetary evidence is terms of admeasurement experts no field, in this are no admissible. There True, are authoritative. charts, no no tables that books, much little much or can tell when too is too too courts bounds of too little little. But within the is too large, where discretion is at much there area too at least to the extent itself, a reason in and this is we have indicated argument have that should here, sway. full a circum-

To what end should we now enunciate Surely scription? say if we are to artificial restriction figure argue gross plaintiffs: “You can not commend but that is all!” Such a dictate does up parts "Why make not itself. discuss the say must even an advocate whole? We not do great- judgment such of if in he deems should, but persuasiveness, not to accord no reason er him that we can see argument,

right. evidence. is, It after all, approved cautionary instruction to that There is an certainly absent this instrue- even know, effect. Jurors case tion, that counsel are not witnesses nor argument. They They parties. expect an are entitled seriously going argne it. No one at this late they arguments lawyers’ date view as evidence. briefly holding summarize our We reasons argument acceptable: place, In the first suggest such an can valid considerations rendering abstraction of comprehensible for into dollars; concrete translation Secondly, argument logically suggested by the monetary evidence when read in context with the de Thirdly, termination that must be made; this line of argument accepted falls within hitherto bounds of advocacy apparent and it is where not to us it now leaps o’er them. think it follows if the diem ar

We that gument proper, then a chart used to follow evidence, arithmetic. The use of demonstrative particular and in a been heretofore blackboard, has approved. People v. 340 Ill. Fisher, 172 N.E. 743 (1930). Again, as itself, with the auxiliary pol defendant attacks its on use matters of icy, might is, that the chart be misconstrued as go evidence. But the chart does not room, adjunct it is not offered in evidence, it is but argument and we fail see how it could be other interpreted. opinion wise We are rather great a chart, here, as used is of assistance. Problems multiplication in addition, subtraction and almost paper. definition are better delineated on To be mean ingful, they just should be seen and not heard, heard. multiply paper To add, subtract without seems approve to us a waste words. the use We therefore particularly easy of when chart, it lends itself for incorporation appeal. in the on record plaintiff

Defendant also asserts that was guilty prejudicial closing argu- misconduct in his developed that it During the trial the course ment. professional man, who, camera hired had defendant pictures dur- motion minutes of took four unobserved, work. period was at ing while hour a four “sneaking around.” We this was said Plaintiff view the the circum- mild, under characterization certainly we Nor do believe error. stances, by plaintiff’s witness that a certain counsel statement testify and to defense for the “in here called was though story,” prejudicial error, fabricate developed in were was uncalled for. Inconsistencies plaintiff’s testimony of defense witnesses objection. it after further on counsel did not dwell given objects instructions certain also Defendant they prop- plaintiff. were them, examined We have allegation erly given, merit. without of error is and the appealed judgment from affirmed. Affirmed. concurs.

McNEAL, J., dissenting. DOVE, J., con- that at the record in this case discloses plaintiff, for the clusion of all the counsel evidence present, jury to stated at a time when the was argu- opposite in his court and to counsel that the ment to plain jury planned place blank a the he piece paper he would write easel, white of on an that damage of elements thereon with ink the indelible planned upon and he which the court instruct would purposes argue illustration of therefrom for the jury properly aid the the and demonstrate to and to very complicated jury interpreting the and in difficult damages question for defend- of in this case. Counsel any objected The court such demonstration. ant plaintiff right such a had that counsel indicated heavy, paper and blank, a white sheet of inches 28% inches was fastened to an easel adhesive 22% tape placed jury portion during and before the a of argument. counsel’s plain-

During opening counsel for the jury compensate tiff that stated the task of the was to adequately; fairly, justly and that give jury court would as instructions to the ele- damage ments consider; of were to first element taken into consideration plaintiff’s injury was the nature and extent and say then counsel continued: can we “What about Kaley’s comparison Charles condition to that a being. any question normal human Is there that this injury, injury? disabling is serious is a Is any question ruptured there that this man a suffered whiplash injury, intervertebral a disc, fractured approximate- rib and the loss of 17 teeth? Is it worth ly objected, $10,000.00?” Counsel for defendant stat- ing that there was argument no evidence value improper prejudicial. The ob- jection was overruled and at this as I under- time, large printed stand the wrote record, counsel figures top paper letters and at the of said the follow- ing: “(1) NATURE & $10,000.00.” After EXTENT— doing proceeded: so counsel then “Can we reach an money pain suffering? item cost suffering? say What is aCan man that his say neck but the man hurts next well? feels Can say radiating a man his back hurts and into leg, way but the feels next man well? Is there a evaluating put you fixing its Can worth? upon pain? pain. puts upon Drugs value Life a value operations; peo- and anesthetics administered for are ple pulled. going take novocain if a tooth is to be placed upon A it, valuation is but it is difficult. Pain varies. Pain is not an all-inclusive Pain term. can be aching pain, pain, excruciating can can be severe be radiating pain. pain, varies. It can be a What from the the date of take time of worth? If we up been back time that he has occurrence this to April, day from 16th that take work, is, years up two occurrence, 1956, this date of April, up ago, the time to about which would be hospital got he went back work and out of got through that is treatment, with Dr. Woodhouse’s year period year period. a two In that two about sixty-five days each of there were three hundred Say years thirty days. or seven hundred and those days person thirty of those hundred the same seven eight normally sleep each of those hours of would thirty days. hours of Let’s take sixteen seven hundred thirty days day each for these seven hundred figure yon you up eleven see that come with a will eighty hours. That is two thousand six hundred and years usually suffering. figure it that don’t We thousand six hundred and way, eighty it is but eleven making suffering. man was Now, hours twenty around three an hour dollars and cents on job, twenty right? that That three dollars suggested cents an hour. be if I Would I reasonable you you pay his rate of cut down only give an hour him to one dollar one dollar eighty an hour or eleven six dol- thousand hundred suffering?” lars upon paper just then wrote said beneath

Counsel following: what he had written, “(2) PAIN &SUFFERING

April 16 56 hrs 11,680.00”

11,680 objected again Counsel for defendant to the demon- stating plaintiff, no stration counsel for wit- competent testify; would ness to so upon any was not based evidence but was purely conjecture part improper. on the counsel objection was overruled and counsel continued: up brings years ago, April, “That us to two from up today, to which is seventeen months. Now sixty-eight my seventeen months would be weeks if Sixty-eight mathematics are correct. weeks would be approximately days. five hundred and ten That is days five hundred ten let’s not more he has suffered. Now, put years. it down into hours in the last two type Let’s confine it ato of situation. Is logical say it day up to that he is ten entitled to dollars a today?

to That isn’t dollar one an hour suffering. It is than one hour, less dollar an and is that unreasonable? If we that, said that would be fifty-one bring up hundred dollars, would us today.” Thereupon days— to counsel wrote: “510 5100.00” and continued: “Now, that us with leaves only two items—one item and items. two Now the you will court instruct there are three items. The today third item must from on, and that is the suffering. say future Dr. What did Addison say permanent? about situation? Did it was say per- Yes, he did. Did Dr. Woodhouse this manent? Yes he did. And does such a situation cause pain? Yes. Is there doubt that this man will suf- fer in the future if he well and he is permanently injured? day This from on. But year this man doesn’t come back to trial a from now years nor today. five from now; he is in court It is you, jury, bring and no other the court can compensate injuries in who can him for from this day you on. in the Now, we have future, showed according expectations, this man, all reasonable they mortality, what going call a table of to live approximately years. 24.52 I course, Of know some people might might die tomorrow live for another fifty years, something by. go but we have have Again go probability, just we have to back to the goes probability like a doctor back to we in go probability life back to that that occur. Then, will according to the statistics, this man will live 24.52 years. figure way If counsel can show us a better problem, hope out this I he Tou take does. 24.52 years days years with 365 in each one of those and day take years a for the rest of his 24.52 life, $1.00 with year days multiply at 365 a and that, would days day be 8760 and at a instead of a $1.00 $10.00 day, figuring days, you figures at 8760 would have the pain. give eight for future So we him would thousand sixty pain.” seven hundred and dollars for future Upon paper placed so fixed the easel and jury “(3) front of the counsel then wrote: FUTURE PAIN—8760.”

The attention of the was then called to the relating physicians hospital evidence bills and counsel wrote:

“(4) HOSPITAL &MEDICAL

$873 $1288.90” 415.90— + damage The fifth item of referred to counsel was indicated on the chart as:

“(5) LOST $2432 EARNINGS— $5312.00”

2880— argument Counsel’s then continued: “The next ele- permanency. ment is the element of We have talked pain, about the future but we have not talked about permanent injury. fact this a What it means go through anticipate to this man to life the dif- ficulty might probably that he what have, step means to this man to take a know whether he can take a when he doesn’t step, what it means to turn we are man not be able to his head as this able to turn and for this man to have to heads, our go knowing type through anticipating what life you say the Now, of condition he has. what would put you upon permanency value here is worth? Can permanency? permanency completely The dif- a different element it is an ele- ferent item and ment he is entitled to recover for. you

May suggest I permanency approximate- in this case is worth ly Indicating eight item, thousand dollars.” this following appears “(6) PERMA- on the viz.: chart, “PERMA- word, NENCY—8000.00” Underneath NENCY,” appears “(7) on this item: chart, and in connection coun- WORKABILITY-” sel in his said: “Now there is one other you item that the court will instruct about also. He compensated for the fact is entitled to job in cannot do his the manner in which he was place. able to do it before this occurrence took . . . question question working is a in the same way job today job on this that he could work on his place. before this occurrence took He is entitled to compensated be for that now and for the but future, going just figure, I’m to leave it at that and leave figure expectancy. work life at the blank of his expectancy years. His life work was 14.7 This is what say they probability man all this should be able years. to earn. Will be able to work the 14.7 Do you period, think he will able to work that but completely blank.” let’s leave that The chart shows top, figures nothing “14.7” at the but in connec- tion therewith. then concluded: “But we total these

Counsel you, figures now for and this is what we are entitled sug- I case, to recover in this these elements. And gest you figures. that these are reasonable If coun- way compensate man, us a this sel can show better figures you. and him But let me add these let show they you ... will total We $50,140.90. see that you you suggested show that a have logical and tried to case would verdict and a fair verdict in this case, . . . our ladies $50,140.90. be about This is gentlemen. They you, in here came before Don’t our evidence is unrefuted and uncontradicted. you think if it could have been refuted or contradicted they so?” would have done aggregate appearing

The several items on the chart figures $50,140.90and in bold near the center of the top chart and close to the and beneath word appears “EXTENT” which in the counsel item, first wrote this amount. presents

The record a review- for the first time to ing propriety permitting court in Illinois the coun- personal injury pre- sel for a in a action, to argument, sent in connection with his a chart or upon which he blackboard writes the elements compose damages he claims his client has sus- upon during tained this course chart, counsel, argument past lists items for future and uses in connection therewith a mathematical computes hourly formula and on an these items places computa- diem basis and the result of his upon presence jury. tion the chart in the of the majority opinion pain, suffering states that disability im- future have an elusiveness that defies mediate or mediate reduction to dollars and cents and holding argu- advances three reasons acceptable. sug- ment First, such gests rendering considerations for valid pain suffering comprehensible; the abstraction of logically argument suggested second, that such is monetary the evidence when read in context with the third, make; and, must determination accepted argument falls within the that snch bounds of advocacy. comprehen- argument suggest a

The diem does compensation plan injured sible allowed an to be argument sug- neither but such is any gested by in the record nor does evidence found argument accepted such an fall within the bounds of advocacy. argument Before an can ever charac- be acceptable evidence terized be based on the as must may reasonably drawn therefrom. or inferences This be in has in the evidence or no basis inference drawn therefrom. suffering,

Pain course, are elements of dam- age plaintiff, personal in- for which in an action for compensated. juries, is entitled to be These elements price. They capable damage have market are not no exactly accurately being there determined whereby damages is them no fixed rule or standard can be The award must be limited to com- measured. pensation compensation but in this connection is meaning price value, be or but as to describing understood recompense looking an allowance toward consequent upon suffering because for, of, or made injury. money question sum would not what undergo voluntarily person be sufficient to induce the what it would cost to hire recovery sought suffering for which undergo someone such suffering, circumstances, but under all what, plaintiff the other should allowed the addition be damage entitled, items to which reasonable necessarily suffering endured. consideration of free reasonable, The amount must be fair and allowed up- fanciful from sentimental or standards and based (15 Am. on the Damages, the evidence. Jur. facts disclosed 481-2-3). pp. sec. proper also constitute

Future and damages allowed an in- of the element jured proba- requisite plaintiff but there must be the bility pain suffering that such and will result and damages pain suffering for future must have a and pain suffering basis the evidence and and merely possible speculative conjectural are are and (15 Damages, not to be pp. 483-4) Am. sec. 73, considered. Jur. Every juror acquainted pain with and compensation damage and for these elements of must jury, guided rest in the discretion of the common proper jury sense. And it is of this character that instruct to the cases province deter- is their damages plaintiff the mine recover; should that in so doing they money should fix an amount of which will reasonably fairly compensate plaintiff and for proven by damage the elements of the evidence includ- ing pain suffering experienced reasonably and and experienced certain in the future as a result of injuries plaintiff the ing sustained; that in determin- plaintiff’s damages jury

the amount of should take into consideration tion of his nature, extent and dura-

injuries and their verdict must be based upon speculation, guess on and evidence or con- jecture. (I.P.I. 30.05). 30.01,30.02,30.04, In jury the instant case counsel told the plaintiff earning per was hour $3.20 at the time he injured suggested jury was of that the his cut rate pay only give down one him dollar an hour suffering during year period $11,680.00 for the two immediately following give the accident him an days additional sum of for the 510 $5100.00 immediate- ly preceding expectancy the trial. Plaintiff’s life was then referred to counsel and the was called upon give an additional $8760.00 day. per only future at rate of $1.00 upon evidence plaintiff which this was based earning prior hour $3.20 time injury expectancy years. of his life was 24.52 points majority opinion basis ont there no theAs saying mathematically em- a man is that because for ployed paid he should he hour, $1.00

at $3.20 suffering. hour opinion majority of Ratner vs. cites the case The thought Arrington Fla. 111 82 and So. 2d states per argument in is found of the diem ful discussion eight the Third and reasons which that case sets out Appeal the authori of Florida said District Court of assigned approving jurisdictions for had ties of other damage argument for determination the diem for suffering. opinion case in the Ratner The and say all the or elements then went on to of items damages in that case and of argued listed on the chart supported by jury evidence some

to the were monetary except the elements of “pain calculable value disability “physical suffering” inability life”. The court then said: to lead a normal prepared not to “As elements we are to those two prejudicial the trial court error for hold that it was argument jury, appellee, the in to allow counsel to proper suggest amount which he felt would damages therefor. he awarded as and reasonable to suggested include a Nor hold it was error to do we approach an award”. to such “the case, in the Ratner “True” continued court the giving point presently courts is one which latter holdings, against the al- for and much recent concern, arguments, grounded on rea- are not lowance of such compel either the decision sons force to of sufficient judicial opinion way. on the ultimate course of The yet approving point Therefore not discernible. purport practice the not foreclose the now we do question. trial now hold that however, do, We overruling ap- judge abuse his discretion did pellants’ objections chart and the the use of the appellee’s chart”. counsel on the based Supreme case was decided the

Since Ratner had occasion to consider this Wisconsin has Court question. In Affett vs. Milwaukee and Suburban Transport Corp., sought 106 N.W. 2d alleged injuries recover been sustained to by to have upon her when bus defendant’s closed door attempting arm while to enter the bus. her During was she arguments jury plaintiff’s closing display suggest counsel used blackboard to computation a mathematical for the formula damages. Upon plaintiff’s damages the blackboard pain appeared were set after forth and the word figures opinion $10,950.00. $1.50 and states that multiplied per day by days counsel $1.50 then multiplied plaintiff’s twenty that sum expectancy whereby life counsel arrived at the total $10,950.00. propriety In the Affett case court stated that the permitting plaintiff present counsel for the of the setting per formula mathematical forth on a by plaintiff diem basis the amount determined the pain damages had been not de- by sharp termined that court and that opinion among there was a procedure of difference the the courts, having approved jurisdictions been in some and dis- approved in others. The court called attention to legal numerous articles in literature cited numer- cases from ous other states. opinion judg

In the its course of which reversed the ment of the trial court in favor the the arguments court said that the of courts of the other jurisdictions pro con, were summarized Ratner Arrington, supra, vs. Fla. 111 So. 2d and after quoting (p. 279): from that case said arguments believe that

“We advanced dis- approving the use of a mathematical formula are persuasive. more The use of a mathematical for- speculation pure by which is not counsel, ismula presents supported by matters evidence appear formula in the record. The not which do may taking gross figure by be used to arrive at money per day arbitrary multi- an amount of days year, plying times in a it the number expectancy years of the life the number plaintiff. Logically, of the followed, method were if this gross at should be discounted amount arrived pain present is constant to its worth. Seldom expectancy plaintiff, and life of the for the entire the in- would be, that it if the evidence showed normally tensity pain that the It is true varies. in cases to fit the evidence formula can be tailored taking sporadic intermittent or where is days only which the number into account might be suffered. future evidence shows subject the basic is still of the formula This use criticism always include an must that the formula day period per arbitrary amount other dollar in the record. no foundation which has time, money argued amount of It obviously relatively reason- small that it is so begs question. The able. Such amount or valuation fact is that such The could not be. and indeed in the evidence or to to illustrate used is sometimes formula prove amount of of a certain the reasonableness money. then used in reverse formula is lump unreasonable be- sum is not show only represents month fewa dollars cause lump Generally determining day. per in the or applied method. in first is as the the formula sum, lump Segmentation to show its reason- of a sum is small diem amount the because ableness subject other meth- criticism as the to the same is way of mathematical is no use. There of od formula, which, represent formulating all will a suffering pain varying in and the factors involved assumptions given making of in a case without formula, in The fact are not the evidence. being than would result claimed, rather in aid as confusing jury. reasoning the The behind basic formula the use of mathematical is so persuade, even to the as it aid, much or ultimately fixed to dis- establish a standard place jury’s concept the what a fair and compensate pain reasonable amount to for the suffering and sustained as shown the evidence light knowledge in the ex- of the common and perience possessed by jury of the the nature of pain money. suffering and value and the difficulty using in a mathematical formula to damages pain suffering and is in- measure herent suffering. in the nature It by any cannot be measured such mathematical suffering price. Pain standard. has no market bought, equiv- It is not or sold bartered. It no has agree in a alent commercial cannot sense. "We reasoning supra, with in the Ratner case, that the absence of a fixed rule for measure- supplies ment a reason present the use of a mathematical formula. The measuring damage rule for as fixed na- subject permit. ture matter will True, counsel should be entitled to reasonable latitude commenting in on the evidence, may proper its nature and effect ferences which make in- reasonably arise from the However, evidence. we fail see where mathe- pain-on-a-per-diem matical formula or a or month basis its basis in evidence, has logical inferences from the evidence. ar- Such guments beyond scope proper argumen- are absurdity a formula

tation. The of mathematical logical applying con- it to its demonstrated may day a of time in If be used as a unit clusion. logical pain suffering, measuring no there is why could a second reason an hour or a minute or perhaps heart heat since used, not he or even a If one from cent live heart heat heart heat. we were used for each second of pain, this would per per twenty- hour, amount to $3.60 $86.40 year. day, $31,536 The four-hour and to yet apparent, absurdity result of such a must pain suffering penny might a a second for principle is the sound unreasonable. not or a second, hour, an same, whether one uses day time, unit of because unit basic assign money some value of time used one must has no in the evidence. see which foundation "We using formula difference in the mathematical no for illustrative using purposes and it to determine sought reasonableness of amount as dam- the ages. prejudicial formula The use of the er- objection use a black- ror. find no We aid to illustrate or demonstrate board as proper argumentation. the course of What may may eye . see. . . Counsel ear hear, may for both and the defendant argumentative suggestion in summation make an from the evidence of lump sum dollar amount they believe the ev- for idence (cid:127) support. fairly reasonably will Coun- argue such amount was arrived at sel explained by a mathematical formula or on a per-month, segment per-day, time or on other basis”. 82, 138 A. 2d Brunner, vs. 26 N.J.

Botta perhaps leading 1331 is case which 2d dis- A.L.R. approves of the use the so-called diem mathe- fixing damages matical basis for and suffer- ing. plaintiff passenger in a in that case was an automobile when Brunner, driven the defendant operated by it collided a car with co-defendant Leo judgment Frieband. The a recovered Superior Appellate upon ap- Division, Court, peal by plaintiff, reversed and remanded only. damages for a cause new trial to In order, as right plaintiff’s personal to deal with the injury damage counsel in suggest monetary

suits to mathemati- computation cal formulas to a for the of com- pensation pain Supreme suffering, for Court Jersey granted of New certification. opinion (omitting

In the course of its the court cita- tions) said: years

“For hundreds of the measure of dam- ages pain suffering following for in the wake personal injury aof has been ‘fair and reason- compensation’. general able This standard adopted acknowledgment because of universal specific impos- that a more or definitive one is sible. There is and there can he no fixed basis, table, standard, or mathematical rule which will guide serve as an accurate index and es- damage personal inju- tablishment of ries. And it for awards equally plain there is no pain measure which the amount of and suf- fering by particular endured human can he cal- place culated. No market exists at which such bought person malaise is A and sold. can sell quantities blood, hut there is no mart where price voluntary subjection of oneself to pain or can he fixed. It has suggested never been that a standard of value can applied. degrees he found and The varieties and of greatly are almost infinite. Individuals differ susceptibility capacity in impossibility recog- to withstand it. And the nizing insolating plateaus or of fixed levels or suffering must be conceded. just

“It is futile to undertake to attach a price tag plateau each level or which could be said have a reasonable basis scientific Any or economic fact. effort must to do so be- fancy speculation, come in emotion, lost (citations) consequence, As a the law has de- damages measuring clared the standard personal injuries compensation to be reasonable and has entrusted the administration impartial judgment criterion to the conscience and jurors may expected reasonably, of intelligently who be to act evidence, harmony in

and with the (citations) jurors mean This does not are they compensa- free to fix what would want as they injuries if tion the had sustained the or what suffering and would worth be to them. ‘golden applied The so-called rule’ not be damages, (citations) Obviously, quot- to such portion plaintiff’s ed summation here runs principle. prefer counter to this we However, disposition appeal base our of the aon more exten- problem. sive treatment of the But since the na- subject only ture of the matter admits of the concept compensation, may of reasonable broad plaintiff counsel for the to the or the defendant state jury, opening closing, or his belief pecuniary price value or and suf- per day fering figure hour or or week, and ask that such part

be used as a mathematical formula damages calculating for to be awarded? expressing personal opinion, may Without a on the valuation he based so much suggest jurors hour or or ask the if day week, or do not think the are fair- they pain and suffering worth . ly so much hour or or week . . day then demonstrate, by such rate as employing a factor computation, verdict be fixed amount would warranted money could be justified?

“Some continued jurisdictions”, court, practice. “have sanctioned such (citations) have Others, to, which we shall advert condemned it. question not been precise passed up- has on by court until we are Accordingly, now. free to the rule adopt which in our best judgment serves the its cause of fair and or- justice and derly administration. As indicated, pain has been have no known mathe- dimensions, matical or financial. no exact corre- There is spondence between or mental physical money injury or suffering, and the various factors in- volved are not on dollars capable proof only cents. For this reason, standard for evaluation is such persons amount as reasonable estimate to fair compensation”, (citations) In vs. Certified T.Y. Co. Appliance Harrington, 126, 201 Ya. returned a S.E. verdict $12,500.00 for her compensate when a sustained shelf television injuries displaying in place collapsed sets defendant’s business and upon argument fell her. his Counsel upon used a blackboard listed items of spe- well as amounts for suggested cial future damages future and and for pain damages. suffering held court reversed the and this was judgment and In the improper procedure. course of opinion its the court said: plaintiff’s suggest permit and counsel to

“To argue jury be allowed for an amount to disability pain anguish suffering, and and mental daily allows basis, or other fixed calculated on province and to him to invade the appear get in the evi- it what does not before expert per- would not be dence. an Since witness testify the market value of mitted to as to suffering, individuals, which differs day day, degree may vary cer- thereof from the tainly counsel the more reason for there is all estimates of counsel tend not to do so. The impressions jurors to instill in the minds of on should be not founded the evidence. Verdicts by jury from the based on deductions drawn adoption presented mere and not the evidence by counsel. are of calculations submitted We by plaintiff’s opinion counsel of a the use setting formula forth on a black- mathematical anguish suffering, pain, mental claim of board the percentage disability suggested him specula- basis, on a diem or other fixed unsupported amount- evidence, tion of counsel testimony ing giving in his summation ar- improper gument, and constituted it was (citations). error”. report Following Brunner in 60 of the case

A.L.B,. interesting annota- 1331 will found 2d be damages problem fixing dealing with this tion basis. from on a Cases Mississippi, ju- Texas and other Florida, Minnesota, upon. and commented No are referred to risdictions by citing quoting purpose good would be served with matter in connection more cases from entertaining to con- interested it would but for one Law recent volumes of NACCA of the some sult by Associa- published National the which is Journal tion of Claimant’s Attorneys. Compensation com- In upon editor menting assistant case the the Botta Jersey court did publication New stated that the ignorance in leave the shrouded its best damages for banning measurement such suffering. com- the stated rule”, “Such jury urgently guidance it so the mentator “denies proper jacket role of the on and is strait needs dangerous says: Continuing “Botta is a advocate”. opinion argued beyond raised and the issues went far inevitably invites authorities cited. It and the (12 figure pulled air guess from the the blind Rutgers lawyer, 522). eminent trial of an In the words L.J. dangerous abridg- opinion the most ‘The prerogative since Erskine de- of counsel ment of the (24 King England’ NACCA LAW ”. fied contrary 253). view De- For a see JOURNAL fense Law where the characterizes Journal editor masterpiece thinking opinion “a of sound Botta fascinating judicial writing”. in- And for and formative reading Belli of Mr. Melvin the address Mississippi Association on “The State Bar before the Achieving More use of Demonstrative Evidence suggested. (Belli, Adequate Modern Award”, p. 1632). Mr. is referred This address Trials, opinion Botta case. in his Justice Francis efficiency, persuasiveness and effectiveness of argument approved by the demonstration majority opinion in the case of is best illustrated Air Line R. Fla. 80 So. Co., Braddock vs. Seaboard appeal in that case which There was a second 2d 662. reported counsel in 96 2d 127. In order that So. is for injury personal

plaintiffs cases in Bli- in future adequate for their clients, secure verdicts nois repro- case here used in the Braddock the chart duced:

“ ‘Mike’Braddock Expectancy “Age years 9 56 Suffering days Pain and to date 395 Experience of accident $5,000.00 Hospital 1,200.00 3/24—4/5/52 days First 30 at home 300.00 days to date 353 700.00 Inability to Lead Normal Life crutches 340.00

3/24—5/31/52 6/1—10/31/52 pylon 459.00 to date artificial limb 348.00 11/1/52 Humiliation and Embarrassment 1,915.00

10,262.00 days yrs. 20,440 56 Future Medical

Checkup by year once doctor 440.00 legs Artificial 3.600.00 Repairs and Maintenance 2.640.00 Stump socks 985.00 pants, Extra shoes and socks 4.400.00 2.912.00 adjustment every Limb 2 weeks

14.977.00 Suffering days 20,440 Pain and 20.440.00 20,440 Humiliation and Embarrassment days 40.880.00 Inability 20,440 Lead Normal Life days 40.880.00 Capacity Earning Loss x 5500 50%

x 56 121,000.00

Total 248,439.00” $ 360 a verdict returned In Braddock case the ex- coincided $248,439.00 for the plaintiff’s aggregate actly demands of the with opinion Dis- of the Third the chart. The set out on Appeal Ratner states case trict Court appeal 2d case, Braddock So. on second in the implicitly Supreme en- of Florida Court 127, dorsed the use argument by affirm- opinion ing it was and that the Braddock case without dissenting opinion ease out the in that which set used. chart reasoning agree courts

I with the of some Federal Jersey, Mis- Delaware, of the New State Courts jurisdictions Virginia, souri, "Wisconsin and other damages for which hold that pain the determination of susceptible of arithmetical and agree I calculation. And with their conclusions suggestion jury specified amount counsel’s of a period per day for such hour, other of time damage elements of an unwarranted invasion province jury, evidence, of the has no basis in the speculative conjectural purely calculated jury larger secure from a verdict much than that my opinion adop- warranted tion, In evidence. courts best Illinois, rule will this justice promote the cause of serve its fair and orderly administration. scope proper include does not

the use formula measure of mathematical suffering such for the as the record shows counsel Permitting argument, used in case. such suggestions objection over demonstrations, require should of the instant defendant, a reversal judgment.

Case Details

Case Name: Caley v. Manicke

Court Name: Appellate Court of Illinois

Date Published: Feb 23, 1961

Citation: 173 N.E.2d 209

Docket Number: Gen. 11,423

Court Abbreviation: Ill. App. Ct.