191 F. 647 | U.S. Circuit Court for the District of Kentucky | 1911
This cause is before me on motion for new trial. Three grounds are relied on:
(1) Error in not sustaining motion to instruct the jury peremptorily to find for the defendant. I still think, as I held at the trial, that this was a case for the jury. I do not have a transcript of the evidence before me, and hence cannot undertake to demonstrate this as I might attempt to do did I so have it. I considered the matter carefully at the trial when all the evidence was fresh in my mind, and, as I recall it now, I would not have been warranted in not submitting the case to the jury.
(2) Error in the instruction as to the measure of damages. The injury suffered by the plaintiff was a broken kneecap and consequent permanent disability. I told the jury that they should allow the plaintiff, if they found for her, such reasonable sum as would compensate her for three distinct harms which she had suffered, to wit, (1) pain
In the Mason Case the measure'had been stated to be compensation for suffering, physical and mental, loss of time, and “all such further injury, if any, temporary or permanent, which they may believe from all the evidence has accrued or is reasonably certain to accrue as the direct result of the injury.” In the Logsdon Case it had been stated to be compensation for time lost, pain and suffering endured or to be endured, expense of treatment, and “the disability to labor, move about and enjoy life,” suffered or to be suffered directly resulting from the injury. In the Cleaver Case the jury had been told that in estimating the damages they “should take into consideration the physical-pain and'mental anguish suffered by plaintiff, if any, by reason of his injuries, his loss of time, if any, from his business, and the impairment, if any, of his power to earn money,” and had not been limited thereto. In the Fuller Case the measure had been stated to be compensation for the “injuries * ' * * sustained,” “including” pain and suffering, mental and physical, and
One thing that strikes me in regard to these cases is how slow lawyers representing plaintiffs in personal injury cases have been in tumbling to this position of the Court of Appeals. Otherwise it would seem that they would have seen to it that no such errors were committed. Here are nine recent cases where the judgment of the lower court was reversed because of error in the instructions as to the measure of damages in relation to the recovery for the permanent injury. It is somewhat strange, too, that the trial courts should so frequently err in this particular. I think I can see in this an indication that one does not naturally take to this position. It found its origin, as we have seen, in a death case. In such cases it is well settled that the recovery is limited to the commercial value of the life of the decedent to his estate. There is no reason to doubt the soundness of this position, and in determining this value the sole thing to be taken into consideration on the estate’s side of the account are the earning capacity of the decedent and his or her probable duration of life. But that such is the rule in a death case has no legitimate bearing on what should be the rule in a case where death does not ensue, but involves a permanent
“Different people might have very different ideas as to the amount of money that would compensate a woman for the loss of her foot. .Such an instruction would be, in. effect, to give the jury no criterion of damages, and is equivalent to an instruction to them to find for Dm plaintiff such a sum as they deemed right considering the injury she had received.”
But the same reasoning is against any allowance of compensation for suffering, physical and mental, due to the injury itself. Different people may have different ideas as to this. No criterion for determining how much shall be allowed on this account is given. And the jury as to it are in effect told to allow such sum as ■ they deem right — considering the injury received. Such a position as that of the Court of Appeals shuts out all recovery for a permanent harm that in no way affects the capacity to earn money.
• These considerations have led me to doubt the soundness of this position of the Court of Appeals, and, as this is a matter of general jurisprudence and I am not bound to follow that court if it does not conform to my views, I have been led to look into the decisions of other appellate courts. The. result of my investigation has been that I find that there is no court taking such a limited view as does the Court of Appeals. I find, also, that the Supreme Court, whose decisions I .am bound to follow, has taken a broader view, and that under those decisions I did not err in the particular complained of.
A permanent bodily injury may-involve impairment'of ability to earn money, impairment of ability to act as one would like, and mental pain in contemplation of it. It may involve all of these things, or some one or more of them or none of them. Where it involves neither, at least, an alteration in one’s person from what it theretofore was has taken place. In such a case, at least where the alteration amounts to disfigurement, it is hard to see why it should not be a matter for the jury to determine whether .some compensation should not be allowed for it alone, and, if any, how much. It is no-more difficult to determine this than to determine how much should be allowed for pain and suffering.
In the case of Western, etc., Ry. Co. v. Young, 81 Ga. 397, 7 S. E. 912, 12 Am. St. Rep. 320, it was held that a plaintiff might recover for a “deformity or impairment of his physical symmetry.” In the case of Birmingham v. Lewis, 92 Ala. 352, 9 South. 343, it was held ■that a woman who had broken her leg by stepping into a hole in a street, and had thereby been caused to limp permanently, was entitled to recover for the mere disfigurement. Judge Walker said:
*651 “The authorities recognize "bodily pain and disfigurement as items for which compensation is to he made in the assessment of damages for personal injuries.”
In the case of Giffen v. Lewiston, 6 Idaho, 231, 55 Pac. 545, of a similar character to the foregoing, Judge Quarles said:
“The trial court did not err in instructing the jury that*disfigurement of the plaintiff caused hy the injury complained of is an element of damage to he considered by them. Such disfigurement is an element of damage: but annoyance to the plaintiff caused hy contemplation of disfigurement is too remote to be considered as an element of damage resulting from personal injury.”
Watson on Damages for Personal Injuries, § 472, states the holding of these two last-mentioned cases in these words:
“It has been decided, also, that physical disfigurement apart from mental suffering, caused hy a consciousness and contemplation thereof, is an element of damages.”
And in 13 Cyc. p. 145, the law is thus stated:
“Tn estimating damages in cases of personal injury, where a disfigurement or deformity of the person has occurred, the jury may take such fact into consideration.”
The only particular in which I find the courts differ here is as to whether it is proper to submit to the jury the matter of mental pain in contemplation of the permanent bodily injury. In the Idaho case, we have seen, it was held that it should not be submitted because too remote. But seemingly the large majority of the courts hold that it should. In Watson on Damages for Personal Injuries, § 428, it is said:
“According to the doctrino of a large number of cases, there may be a recovery, ii¡ actions for personal injuries, for such mental anguish as results from a consciousness and contemplation of one's disfigurement of person, and. where such, an injury is shown, mental suffering on account of disfigurement may be i>resumed, though there is no distinct allegation or proof thereof.”
The author cites the decisions of eleven different state courts in support of this position. In the case of Nichols v. Brabazon, 94 Wis. 549, 69 N. W. 342, it was-said that it had often been held to be proper to, consider in such cases “mental suffering on account of disfigurement of the person or impairment of the use and symmetry of the limbs.” Tn the case of Atlantic, etc., Ry. Co. v. Wood, 48 Ga. 565, it was held proper for the jury to consider “the mortification which it put upon him (plaintiff who had been permanently injured) from having to pass through life deformed, lame, shorn of his full proportions of a man.” The exact language in which this element has been submitted has sometimes been criticised, whilst the submission of the element itself has been upheld. In the case of Power v. Harlow, 57 Mich. 107, 23 N. W. 606, the jury had been charged that they might “take into account the deformity occasioned by the wound and the humiliation that would naturally follow by reason of such injury.” Judge Cooley, in referring to this charge, said:
“Though the word ‘humiliation’ was not a fortunate one to make use of, there can he no supposition that its use was misleading. There must be more*652 or less permanent annoyance from the mutilation of a limb, irrespective of the diminished, usefulness, and the jury had a right to take this into account.”
3 Sutherland on Damages, p. 259, states that the measure of damages in personal injury cases is “compensation according to the nature of the injury when the proper action is brought. Such injury may consist of personal inconvenience, sickness, loss -of time, bodily and mental suffering, loss of capacity to earn money, pecuniary expenses, disfigurement, or permanent physical or mental impairment.”
And on page 713 he asks:
“When, a healthy person is thus made permanently an invalid, deprived largely of his capacity to enjoy life, suddenly transformed from a mental state of cheerfulness and hope to another of melancholy by day and unrest and bad dreams by night, is he not entitled to some compensation for this physical and psychical alteration in himself?”
■ The leading case to the contrary is that of So. Pacific Co. v. Helzer, 135 Fed. 272, 68 C. C. A. 26, 1 L. R. A. (N. S.) 288, a decision of the Eighth Circuit Court of Appeals, opinion by Judge Sanborn. He thus states the reasoning against-the position:
“But mortification or distress of mind from the contemplation of the crippled condition and of its effect upon the esteem of his fellows, that mental pain which is separable from the physical suffering caused by the injury, is too remote, indefinite, and intangible to constitute an element of the damages in such a case and evidence of it is inadmissible. * * * Mental pain of this character, the suffering from injured feelings, is intangible, incapable of test or trial. The evidence of it, like that which converted the alleged witches, rests entirely in the belief of the sufferer, and it is not susceptible of contradiction or rebuttal. Many other causes, the education, temperament, and sentiment of the sufferer, the mental attitude, the acts and words of his friends and acquaintances, concur with the accident to cause this mental distress in such a way that it is impossible to separate and ascribe the proper part of it to the injury caused by the defendant. And the amount of mental pain caused by any disfigurement necessarily varies so with the character, temperament, and circumstances of the injured person that no just measure of damages from it can be found. Such mental suffering is too remote, intangible, and unmeasureable to form the basis of any just adjudication.”
In so holding that court followed the earlier decision by it in the case of Chicago, R. I. & P. Ry. Co. v. Caulfield, 63 Fed. 396, 11 C. C. A. 552, opinion by Judge Thayer, which decision was itself based on the decision of the Supreme Court of Vermont in the case of Bovee v. Danville, 53 Vt. 190, as to which some question may be made as to whether it covered the question there involved. The injury complained of in the Vermont case was not a permanent injury to the body. It was a miscarriage ¿resulting from an injury negligently inflicted upon a woman. It was held that, though recovery could be had from mental suffering attending the miscarriage, none could be had for injured feelings following it. 'Judge Powers said:
“If the plaintiff lamented the loss of her offspring, such grief involves too much an element of sentiment to be left to the conjecture and caprice of a jury. If, like Rachel, she wept for her children and would not be comforted, a question of continuing damages is presented too delicate to be weighed by any scales which the law has yet invented.”
■'The defendants objected to this instruction that the jury were permitted to assess damages for mental suffering. But the instruction given only authorized them in assessing damages for the injury caused by the defendants to rhe plaintiff to take into consideration his hodily and mental pain and suffering, both taken together (but not his mental pain alone), and such as inevitably and necessarily resulted from the original injury. The action is for an injury to an intelligent being, and. when the injury whether caused by willfulness or negligence produces mental as well as bodily anguish and suffering independent of any extraneous consideration or cause, it is impossible to exclude the mental suffering in estimating the extent of the personal injury for which compensation is to be awarded.”
Now a holding that mental suffering accompanying physical suffering may be considered is hardly a holding that mental suffering after physical suffering has ceased in contemplation of the permanent bodily injury may not be considered in estimating the damages, though the way in which this holding is expressed and supported may be thought to lean towards such additional holding. But the decision of the Supreme Court to be hereafter referred to is more in support of the-position that allowance may be made for such mental suffering than this decision is against it. The case of Dorrah v. Railway Co., 65 Miss. 14, 3 South. 36, 7 Am. St. Rep. 629, also cited by Judge San-born, does not support his position. In that case there was no bodily injury at all. The question was whether mental suffering was an element of damage where a passenger had been carried beyond his station, and it was held that it was not. In the case of Johnson v. Wells Fargo Co., 6 Nev. 224, 3 Am. Rep. 245, also cited by Judge Sanborn, it does not appear that there was a permanent bodily injury, and that the pain of mind involved was such as accompanied such injury and was in contemplation of it. The right to recover damages for any suffering, bodily or mental, was said to be contrary to reason. I have not the other cases cited by Judge Sanborn in support of his position, and hence cannot say whether they do in fact support it or not. 1 would not, however, be understood as questioning the soundness of Judge Sanborn’s position. Indeed, it is hard to resist the persuasiveness of his reasoning.
It is now in order to consider the relevant Supreme Court decisions, which include that of Kennon v. Gilmer, already in part considered. In the case of Illinois Central R. R. Co. v. Barron, 5 Wall. 90, 18 L. Ed. 591, there is this dictum of Mr. Justice Nelson as to the measure of damages in a personal injury case where death has not ensued:
‘■There can be no fixed measure of compensation for the pain and anguish of body and mind, nor for the loss of time and care in business, or the permanent injury to health and body."
In considering the case of Kennon v. Gilmer, above, I took, in only one feature. The jury, in addition to being authorized to take into consideration plaintiff’s bodily and mental pain and suffering; had been charged to consider also “the inconvenience of being deprived of his leg and loss of time and inconvenience in attending to his business generally.” Here impairment of ability to act as he would li’ e — i. e., the inconvenience growing out of the loss of his leg was expressly submitted to the jury. No criticism of the instruction on this ground was made, and there is not the slightest indication that the Supreme Court thought that the instruction in this particular was unsound. The other' decision of the Supreme "Court relevant in this connection, and to which reference has been heretofore made, is that of Denver & Rio Grande Ry. Co. v. Harris, 122 U. S. 597, 7 Sup. Ct. 1286, 30 L. Ed. 1146. That rvas a suit to recover damages for an assault and batteiy, consisting in plaintiff’s being fired upon and seriously wounded. The point of the decision relied on is to be gathered from this portion of Mr. Justice Harlan’s opinion, to wit:
“One of the consequences of the wound receiA^ed' by the plaintiff! at the hands of defendant’s servants was the loss of the power to have offspring — a loss resulting directly and proximately from the nature of the wound. Eaú-' deuce of this fact was admissible, although the declaration does not, in terms, specify such loss as one of the results of the wound. The court very properly instructed the jury that such impotency if caused by the defendant’s Avrong might be considered in estimating any compensatory damages to which the plaintiff might be found, under all the evidence, to be entitled.”
■Here, then, was a permanent bodily injury which did no.t affect the power to earn money, but which did involve inability to perform the natural function of procreation and mental pain in contemplation thereof, and it Avas held that compensation should be made for it, and that was for the jury to say how much should be so allowed. It seems to me that this decision is a direct authority in' support of the instruction complained of herein. In this connection it is to be noted that the Court of Appeals of Kentucky has held, in -a case which. I cannot now place my hands on, to the same effect as held in this decision of the Supreme Court, which is hardly consistent Avith its position that the recovery for a permanent bodily injury should be limited to the impairment of the power to earn money. I have not been able to lay my hands on any other- relevant federal decisions than those which I have already considered, except the case of The Oriflamm, Fed. Cas. No. 10,572, to which I will now allude. There an allowance of $500 was made for a scar on the forehead of a German girl, a steerage passenger, in the vessel which was libeled, who was injured by tin boxes falling on her. Judge Deady, in discussing the matter, said:
*655 “It. may be that the sum of $500 Is an insufficient compensation for, such a blemish upon the personal appearance of the libelant. „ But it does not appear that ihe scar will affect, her personal appearance so as to make her presence offensive or painful to others, for this reason it is not likely to interfere with or prevent her from obtaining employment in her calling and sphere of life. II will in no way affect her ability to labor and earn her living. In manner and appearance she is a plain girl moving in an humble walk of life, and not like many others dependent upon her beauty for her dowry or support. Still the scar will he a permanent disfigurement of her person, for which she is entitled to some compensation. Karr v. Parks, 44 Cal. 49. In this country, at least, it is still open to every woman, however poor or humble, to obtain a secure and independent position in the community by marriage. In that matter, which is said to be the chief end of her existence, personal appearance, comeliness, is a consideration of comparative importance in the case of every daughter of Eve.” .
In Kentucky under the rule laid down by the Court of Appeals no recovery could have been had for that scar, because, as was expressly held by Judge Deady, it in no way affected the libelant’s ability to labor and earn her living. 'Phis illustration, it seems to me, is sufficient without more to convince one of the unsoundness of this Kentucky rule. As I am not bound by it, I must decline to follow it, and hence hold that I did not err in the particular complained of.
Possibly in a case where the plaintiff was a wage-earner or otherwise a money maker, and the permanent injury affects his or her ca - pacity to earn or make money, substantial justice will be done if the measure of recovery is limited to the items of pain and suffering, loss of time, expense of cure, and impairment of power to earn money. This gives sufficient room for a jury to allow what should be deemed ample compensation for the injury sustained. To include more may have a tendency to generate feeling in the jury, such as to be in the way of a proper handling of the case by it. But, where the plaintiff is not a wage-earner or otherwise a money maker, as is the case here, Or where, though he or she may be such, the permanent injury does not affect his or her capacity to earn or make money, there is little or no room to include impairment of power to earn money as an element of damage, and substantial justice will not be done in limiting the measure of recovery as above. In such a case at least, the jury should be allowed to take into consideration the effect of the permanent injury otherwise than on the pow'er to earn or make mouejr. And it seems to me that, where the effect of the permanent injury ig not limited to such power, it should be left to the jury generally as I did in this case, instead of itemizing all the possible effects. To do so would be excessive itemization. The withholding of its harrowing effect is more to be desired than giving the jury a more definite guide. Particularly should such harrowing language as that condemned by Judge Cooley or that indulged in by Sutherland be avoided. Coming from the court, it is possible for it to be quite baneful. I might have passed this ground by with the suggestion that no exception was taken to this portion of the charge. But in view of the next and last ground relied on I have preferred to dispose of it on its merits.
Three matters are specially relied on as having a tendency to prejudice the jury against defendant. One was that the plaintiff was good looking. Another was that certain ex-officials of the defendant, under whose administration the defective condition of the sidewalk arose and was permitted to remain until the present officials succeeded them, testified strongly against defendant as to the nature and extent of that defective condition. And the third one was that plaintiff’s attorney was a cripple, and in his argument to the jury made some allusion to 'his knowledge of -the effect of being a cripple. The allusion should not have been made,.but no objection was made to it. As to the testi
The motion is overruled.