132 A. 810 | Pa. | 1926
Thomas P. McCaffrey sued Adolph E. Schwartz in trespass, for personal injuries, and recovered a verdict on which judgment was entered; defendant has appealed, complaining (1) of the trial court's refusal to enter judgment in his favor n. o. v., asked on account of the alleged contributory negligence of plaintiff, (2) of certain rulings denying defendant the privilege of cross-examination, (3) of alleged errors in the charge, particularly (a) when dealing with the subject of awarding damages for impairment of earning capacity, (b) in omitting instructions on the necessity of reducing any monetary award which anticipated future losses to the present worth of the money involved; and this last complaint raises for discussion the general subject of the admissibility in evidence (c) of standard tables evaluating anticipated payments, and (d) of other tables estimating expectancies of life. All matters above indicated will be considered by us, and, since errors connected with some of them require that the case be tried again (as will be *566 shown in the course of this opinion), we add another heading for consideration (referred to in argument for appellant, though not covered by any assignment of error), viz, (4) the obligation of plaintiff to reduce his damages by submitting to the usual surgical treatment appropriate to his physical condition.
The facts of the case, necessary to an intelligent consideration of the several points before us, may be briefly stated from plaintiff's testimony thus: At about six p. m. on December 27, 1923, a foggy, snowy evening, McCaffrey, while crossing a street in West Philadelphia, was knocked down by the automobile of defendant, which the latter was driving; plaintiff suffered a dislocation of his right shoulder and other subordinate injuries; at trial, the chief claim for damages was based on the impaired physical condition of plaintiff due to the shoulder dislocation and its consequent harmful effect on his earning capacity; these, defendant then claimed, and now insists, could have been, and still can be, greatly relieved and reduced by plaintiff submitting to the usual surgical treatment appropriate to his condition, which he, thus far, has failed to follow in certain particulars, to be hereinafter mentioned.
On the first of the above-stated questions, it is sufficient to say that, as the case was presented at the trial under review, both defendant's negligence and plaintiff's contributory negligence involved issues for the jury.
As to the second question, the interrogatories ruled out on cross-examination, if objectionable at all, were such in form alone, — not in substance or on the score of irrelevancy; it is not to be anticipated that they will again be put in the same form, therefore it is unnecessary to consider, them at this time further than to say that a trial judge should always be liberal in such matters, and the present rulings show an attitude rather to the contrary.
On the third question involved, first directing our attention to subdivision "(a)" thereof, the charge was as *567
follows: "You will consider and recompense him for any loss in wages up to the present time and any loss that he may experience in the future. Consider his expectancy of life, which doesn't control you but only guides you; . . . . . . consider his age, his health, his habits, his sex, the condition of his health before the accident and the condition of his health at the present time." These instructions are both wrong in law and inadequate in substance. To begin with, this court has more than once said that, in cases like the one before us, the standard of compensation is not "loss of wages" which one injured "may experience in the future," but loss brought about by impairment of earning capacity; and these two, as pointed out in our cases (see Piper v. Adams Express Co.,
As to subdivision "(b)" of the third question involved, this court, in Hockenberry v. Newcastle Elec. Co.,
Before passing to a consideration of the next subdivision of question three, it may be well to state that, while the absence of instructions of the character now under discussion does not necessarily constitute reversible error, such instructions are always appropriate where future payments are to be anticipated in a verdict; trial courts must keep this fact in mind when dealing with that class of cases, for, should the exaggerated size of a particular award indicate the jury's failure to discount the value of future losses, the absence of all instructions on present worth might well lead to a reversal in cases where attention was called to the oversight at the trial or a new trial was refused despite an allegation of excessiveness in the verdict. Of course, where such instructions are given, they must be in proper form, and the jury's attention should be called to the fact that a man's earning power naturally decreases as his life approaches its end. This is particularly true of the manual laborer, but it also applies in *570
a less degree to the average brain worker. The point must be brought to the jury's attention so that, after the expectancy of life has been determined, proper allowances may be made for this natural decline, when computing losses brought about by the decrease of earning power attributable to the accident: see Reitler v. Pa. R. R.,
We shall now consider subdivision "(c)" of the third question involved, which has to do with the admissibility in evidence of tables showing the present worth of a dollar payable at a fixed date in the future. First, it must be understood that direct application of annuity tables, — calculated, as they are, on the basis of a constant annual amount, — is never permissible in cases of the present type, because, if this course were pursued, the gradual decline in the average man's earning capacity toward the end of his days would make the result inaccurate in any given case. Present-value tables have been held admissible only to show the proportionate relation between payments which would ordinarily be made in the future and a lump sum to be awarded at once as compensation for their loss: Seeherman v. The Wilkes-Barre Co.,
What we have said in the immediately preceding paragraph, while at variance with some of our previous rulings, is not inconsistent with the doctrine of stare decisis, when properly understood, a tenet of which is, "When we leave the domain of substantive law and enter that of evidence and procedure, . . . . . . changes may be made with greater . . . . . . freedom [and] courts usually are willing to relax judicially-established rules of evidence or procedure [when, after due trial, they are found] to be . . . . . . harmful in operation": see article on Stare Decisis in Courts of Last Resort, 37 Harvard Law Rev. 409, 420. Where experience of long duration, and due judicial consideration, show a certain kind of evidence, though logically relevant, to be, in practical effect, harmful, it may be excluded. The reasons for this rule are well stated in Sutton v. Bell,
Subdivision "(d)" of the third question involved opens up a broad field for thought. The Carlisle tables and what are known as the American tables, the first based on the entire inhabitants of certain parishes in Carlisle, England (under living conditions different from those of the present, especially in our large cities), and the second made up from selected insured lives, were put in evidence by plaintiff. Both purport to show life expectancies at given ages; they were admitted without objection on the part of defendant, but the trial judge made no direct reference in his charge to either of them. When tables of this character are part of the evidence in a case, the court should carefully instruct concerning their use, and all the factors which tend to limit their application ought to be stressed. It is not enough for the trial judge to charge, as the judge in the present case evidently intended to do, that the tables are of some aid, but not conclusive, in determining the probable life of the plaintiff. "All the circumstances affecting the probable duration of plaintiff's life as disclosed by the evidence . . . . . . should [be] called to the attention of the jury": Seifred v. Pa. R. R.,
So far as the competency of this character of evidence is concerned, as early as 1874 the New York Court of Appeals held that mortality tables were admissible, pointing out that they had been in use by the Supreme Court of New York, under a special rule of that tribunal, for many years, and that they had long been employed by the New York Court of Chancery and the Court of Equity in England, and adding that such a use "is too well known to require any citation of cases": Schell v. Plumb,
In our own State, mortality tables were first admitted at the trial of a negligence case in 1891, Steinbrunner v. Pittsburgh Ry. Co.,
We have now reached the conclusion that the admissibility of these tables is subject to two well-recognized principles: (1) Where there is already sufficient evidence before the jury from which, without the aid of the tables, it can properly decide the probable duration of the life in question, the trial judge may exercise his sound discretion, as in the case of any matter of cumulative evidence, and decline to admit the tables on the ground of lack of necessity. (2) Where under the facts of a particular case, the admission of the tables would tend to do more harm than good (if, for instance, the plaintiff did not enjoy normally good health before the accident,4 or is following a particularly hazardous occupation, or there is no reasonable probability of the financially harmful effects of the injury lasting till the end of plaintiff's life), the trial judge, in the exercise of a sound discretion, may bar them, just as he may refuse any other evidence which will tend to confuse or mislead the jury.
The fourth point stated in the first paragraph of this opinion now requires consideration. Plaintiff's business pursuit was that of an adjuster for an employers' liability insurance company. The injury to his shoulder left his right arm in such bad condition that his hand "cramped" after he wrote "steadily for three or four minutes," and this made him give up his calling. Defendant produced expert medical testimony that "practically 100 per cent of dislocations have adhesions" which might cause the condition of which plaintiff complained, and that, when "passive-motion" treatment was not sufficient to overcome these adhesions, it was usual to break them forcibly, with the patient under an anæsthetic; that this treatment was resorted to in "practically every case," and, though causing the patient to suffer increased pain for a few weeks, it restored the *577 affected part to normal "in the majority of cases." This doctor testified that, in his professional opinion, plaintiff's case was the ordinary one of dislocation of the shoulder, and that, under the usual treatment, as described by him, "at least 70 per cent" of such cases recovered normal use of the affected member.
In Potts v. Guthrie,
In the present case, the evidence as to proper and usual surgical treatment, mentioned above, must have been overlooked by the trial judge when charging the *578 jury, for no specific instructions were given on the point of plaintiff's legal obligation to reduce the damages attributable to the accident by undergoing further treatment. If the case is tried again, on evidence of like character, the law as announced in the authorities last above cited should be kept in mind and the jury instructed accordingly. An annotation of cases on this subject may be found in 11 A.L.R. 230.
Before concluding this opinion, it is but fair to say that, so far as the record shows, the trial judge was not specially requested to instruct on the point of plaintiff's obligation to reduce his damages, nor was the omission to do so called to the court's attention at the end of the charge; and also, in this connection, it may be noted that the opinion of the court below, entering judgment on the verdict, states, "counsel were asked at the conclusion of the charge if they had any further requests to make, [whereupon] counsel for defendant replied he desired nothing further." But the record as made up by the official stenographer and certified by the court below fails to show any such colloquy, and we must take the record as it stands; where the trial judge desires to amend the record following its certification, he should do so in a more formal way, after notice to counsel. This rule, however, has not affected the order we are about to enter.
For the reasons already stated in disposing of the third question involved, the fifth assignment of error, which complains of certain portions of the charge, is sustained, and the judgment is reversed with a venire facias de novo.