148 Wis. 222 | Wis. | 1912
Lead Opinion
The following opinion was filed January 30, 1912:
The former decision in this case on appeal to this court declared the rules applicable to the facts at issue between the parties and must control in the determination of the questions presented.
The verdict is assailed upon the ground that the evidence does not sustain the findings of the jury. In substance, we find the state of the evidence not unlike that on the former appeal, wherein it was held that it presented a jury question. 144 Wis. 404, 129 N. W. 414. The contention is however made that the evidence of plaintiff and of the witnesses who testified on the subject of the alleged danger from the explosions of bottles after being placed on the tray at rest and protected from external force, and on the subject of defendant’s want of care as to knowing of such danger and warning employees thereof, differs from the facts on the former trial in
It is urged that the court erred in rejecting twenty-one of the twenty-three questions submitted by the defendant as part of the special verdict. The special verdict submitted by the court is correct. It embraces the questions of the ultimate issuable facts presented by the pleadings and the evidence, and the findings in response thereto by the jury establish a complete cause of action and good ground for a judgment determining the rights of the parties as litigated upon the trial.
It is however claimed that the defendant was prejudiced by the rejection of these questions because they pertain to issues of fact raised by the pleadings and concerning which evidence had been adduced. In so far as these proposed questions cover inquiries that are not part of the issues embraced in the verdict actually rendered it cannot be prejudicial, because in effect the court’s rejection thereof constitutes a ruling that the evidence material thereto was insufficient to sustain any claim of the plaintiff and hence is a ruling in appellant’s favor. Do any of the rejected questions form part of the issues embraced in the verdict rendered which are not properly included and passed upon by the verdict of the jury? From a study and examination 'of the requested questions we find that the only special issue of fact calling for submission in connection with the ultimate issues embraced in the verdict
Exceptions are taken to certain sentences and portions of sentences .of the instructions to the jury. We have examined them and find they were correct and that they contained nothing misleading when interpreted in connection with the other parts of the charge and the questions in the verdict to which they were directed.
Immediately after the jury retired, the court recalled them to the court room at the request of the plaintiff’s counsel and stated that upon the request of plaintiff’s counsel he would instruct them as to the burden of proof in the case, and proceeded.to do so. It is urged that this was a prejudicial proceeding. The statement by the court that he recalled the jury at the request of plaintiff’s counsel, after having refused in their presence to instruct as requested by defendant’s counsel, cannot be said to have operated prejudicially upon the jury under the circumstances. Recalling the jury was a plain duty of the court, and we discover nothing improper in the court’s manner of performing it.
Nor do we discover anything prejudicially erroneous in the court’s charge defining negligence, or in the statements of the claims of the respective parties under the evidence; The instructions given fully cover the questions in the verdict, were correct, and contained.the material and essential parts of the rejected requests to instruct.
A number of detailed exceptions to rulings on evidence are urged upon us as erroneous, because several witnesses were permitted to testify on redirect examination on the matter in their examinations on the former trial, and because the court improperly permitted cross-examination of the defendant’s.
T-he award of damages is assailed as excessive. It appears that plaintiff’s eye had to be removed. The plaintiff testifies-that he suffered considerable pain from the treatment and operation, that he is unable to wear an artificial eye, that the afflicted side of his face is somewhat diminished in size- and exhibits the disfigurement resulting from the vacant eye socket, that he has pains in this region of his face, and that the sight of the other eye is not as good as before the injury.. The fact that plaintiff is young in years makes the injury and damage greater than if it had occurred to him in a later period of his life. True, as appellant claims, this court limited the-recovery in Olwell v. Skobis, 126 Wis. 308, 105 N. W. 777, for the loss of an eye to $6,000; yet it cannot be held that-such a sum is to be regarded as the maximum amount for injuries of this nature. In the very nature of things the amount which will compensate a person for an injury which must attend him through life cannot be measured by strict and definite rules and must be left largely to the sound judgment of a jury, and the trial judge. Another case illustrative of this subject is the ease of Coolidge v. Hallauer, 126 Wis. 244, 105 N. W. 568, wherein the jury awarded $7,000 to an. operator of a button machine, twenty-eight years of age, as compensation for the loss of an eye. Though exception had been taken to the amount as excessive, it was not urged that, it was excessive upon appeal to this court, and we must con-cludé that the parties did not regard this amount as excessive for such an injury. The trial court in this case approved the award of the jury as reasonable and just. We do not con
By the Court. — Judgment affirmed.
The following opinion was filed March 4, 1912:
Dissenting Opinion
(dissenting). Duty, it seems, calls me to
dissent as to the damages. I would not do so on any unsubstantial ground or where, to my view, the matter was doubtful. With due respect, I trust, for the opinions of others, here the error seems clear; the approved recovery to violate precedent, violate the logic of legal damages in such cases, violate legislative policy in general, and be detrimental to public welfare.
My judgment is not better than that of any of my brethren, but no judge can be truly loyal to duty without standing by firm convictions created by careful reflection and consideration.
In view of my oft expressed opinion respecting the ethical right of every employee to just compensation for inadvertent bodily injuries received in the course of his employment, regardless of the source of fault, it cannot be thought I am not keenly sensible to human suffering in such cases. But one must hold to legal, just, practicable standards as he understands the matter.
I repeat what I have urged before, — personal injury losses in service, necessarily, must enter into the cost of production to be paid, ultimately, by the consumer, according to an economic law as certain in its operation as any in nature,— there is no escape from it. Invisible and unappreciable as it is, — as much so as the forces which control the planets, the ultimate point of rest of all such losses is the body of the products entering into consumption. Humanity as well as conservation of human resources and welfare, require this great truth to be appreciated, as I have taken the liberty, sev
However, tbe idea of compensation, whether vitalized by common-law rule or written law or left to rest in mere ethical standards, springs from one’s sense, of justice under all the circumstances, keeping in mind that full compensation is impossible, the attempt to effect it destructive, and that those who furnish opportunity for employment as well as the employed are to be considered in dealing with the matters which are the inevitable incidents of industry, the common misfortune and common burden.
• True logic in the field under discussion is stated in Guinard v. Knapp, Stout & Co. Co. 95 Wis. 482, 70 N. W. 671, and often approved here:
“Although the defendant may have committed a fault, it is not, for that reason, an outlaw nor beyond the care of the law. Society may still receive valuable service from it, and so is interested to preserve it against spoliation, by applying to plaintiff’s recovery a proper limit of compensation. It could not advance the interests of society to impoverish and bankrupt the unfortunate defendant. . . . Absolute indemnity is impossible. . . . The most [the law] aims to do . . . is to give some just compensation for the damages suffered.”
To go further in an effort to repair a personal injury loss than as above indicated, would establish a new rule, productive of waste, which legislatures all over the land have been striving to prevent. Exorbitant recoveries encourage litigation, demoralize the profession, discourage industry, prejudice general welfare, and bring down criticism upon the courts as inefficient to maintain a practicable standard of justice. Just- compensation to the injured is a legitimate part of created things; any excess with its large public and private incidental expense, constitutes waste, abnormally increasing the price of consumable things, decreasing indus
The foregoing prefatory remarks, seem proper as a basis for what I may say as to the particular recovery. To appreciate my view of the case, it must be surveyed as I read the record.
The boy was sixteen years old. He had substantially entered into his real place in the social state. He was twenty at the time of the trial. He was rather dull, without education or capacity for much development, and could not well be thought to have had fair prospect of rising above the level of common labor. He was in the hospital but a few days. His case ran the usual course to a substantial recovery. His general health and working capacity were not materially impaired. He yet, occasionally, senses- some abnormal feeling, akin to pain. He returned to work for appellant, as he said, in about three weeks and continued some three years and till after the first trial of this case. He worked elsewhere till about the time of the last trial. He said he could not wear a false eye because it hurt him; but there was no expert evidence as to difficulty in that regard. It is to be presumed he could, as every one in such circumstances has to, accustom himself to use of a false eye, substantially restoring his former personal appearance. In short, the case is ordinary, so far as the injury is concerned, and rather below it as to pecuniary loss. If it so looked to my brethren I hardly tbi-nk the $7,000 judgment would have been approved.
What does the recovery mean- under the circumstances? The service activity of such a person is never regular. There are interruptions by causes too numerous to- mention, reducing average working time for life, probably, to 250 days per year and average yearly wages to $350 or less. The
True, there may be large attorney’s fees to be paid, but the law does not contemplate any enhancement of the recovery on that account. How much, as a fair measure of the loss, under the circumstances, regardless of litigation? That is the question. In contemplation of law, expenses, so' far as the losing party should pay them for his adversary, are measured by the cost bill. An instruction to consider the additional cost to plaintiff in awarding damages, would be promptly condemned. So we deal with the $7,000 as given for loss, independently of the litigation.
Now are there precedents here for such a recovery as the one before us, — precedents for affording a person injured by loss of an eye without materially injuring health or working capacity, except for a brief period, the full value of his life in compensable labor feature?
The court refers to Olwell v. Skobis, 126 Wis. 308, 105 N. W. 707. It was this: A young, well educated, comely lady of experience in a profession which required good eyesight to enable one to serve well, — one able to earn more than a common laborer by far, and of good prospects, lost an eye. The case was extraordinary in many aspects. The injury practically destroyed the young woman’s valuable life prospects. The jury awarded $12,000. The trial court approved it. This court thought it manifestly excessive. The judgment was reversed on several grounds, rendering an option to take a new judgment impracticable. The court suggested that no sum in excess of $6,000 could be sustained on the evidence.
The court further refers to the recovery of $7,000 in Coolidge v. Hallauer, 126 Wis. 244, 105 N. W. 568. Plaintiff was a young mechanic. The circumstances showed loss-much greater than here. Probably through oversight, the-excessiveness was not referred to for reversal, counsel having-overconfidence in other points. The subject was not passed upon at all. Whether the court would have cut down the amount under other circumstances we can only he of opinion.. But it seems quite novel to refer to omission of counsel to bring such a matter to the attention of the court as a precedent to guide judicial footsteps in case of a contest.
Wysocki v. Wisconsin Lakes I. & C. Co. 121 Wis. 96, 98 N. W. 950, was not referred to. There plaintiff lost an eye, his face was badly disfigured, and skull fractured so that part of it, covering the brain, had to be removed. He was. confined to his bed some three months and, after a painful partial recovery, he was left a -wreck for life. A verdict of $8,000 was sustained. The case was highly extraordinary,, the loss of the eye being the smallest part of it.
Now as to foreign precedents, — there are isolated cases of large recoveries, explainable, in general, by special circumstances. Here is about as fair and full a collection of them as can be made: A man, aged thirty-five, able to earn a large salary, lost an eye and had his working capacity reduced one-half, was awarded $5,000. Johnson v. Mo. Pac. P. Co. 96 Mo. 340. A locomotive engineer from loss of an eye was unable to work for eight months, was put to considerable ex
With the foregoing' recoveries in courts at home and abroad, and the legislative policy in all civilized countries of the world, all the states of our Union where compensation acts have been adopted or proposed, the pending proposed bill in Congress, the schedule of rates for pensions for such losses, and established principles upon which compensation should be based, — we have a demonstration, it seems, that $2,000 to $3,000 for an ordinary case of loss of an eye is about fair. Anything more should challenge close attention, and much more be thought manifestly excessive.
I appreciate the length of this opinion, but think it is justified by the case and the purpose. There should be no thought of punishment in the minds of jurors, permitted to be efficient, as said.by this court in Potter v. C. & N. W. R. Co. 22 Wis. 615. Evidence to the contrary should receive efficient attention. The- sole thought of jurors should be, in case of liability, fair compensation for the loss suffered by the mutual misfortune. The amount of recovery in such
Is there not need for some halting in the field discussed ? Is it not a discredit to our system, as vitalized by the administration of it, when such system is viewed as a science, that it permits a range of recoveries of $2,000 to $7,000 without any very great difference in situations ? If so, where is the fault ? Is it in the system or in its administration ? Is there not room for beneficial change other than by written law? Could there be such a range as suggested without the difficulty being in failure to impress upon juries the true logic of recoverable loss, and giving too much heed to unbridled arbitrary awards under lingering influence of the perversion that the judiciary is practically helpless where the award is not characterized by passion or prejudice ? I apprehend that if the trial court had given plaintiff the option to take half the amount of the jury award, or submit to a new trial, the ruling would have received approval here, and that such course would have been taken if the scope of judicial authority under the Code had been fully appreciated.