Opinion
November 12, 1948.
January 3, 1949.
Appeals — Review — Verdicts — Excessiveness — Personal injuries — Pain and suffering — Loss of earnings and earning power.
In a suit for personal injuries, in which plaintiff received a verdict for $30,000 despite the almost total absence of medical treatment: and from the statements of the doctors who examined plaintiff immediately after the accident, it seemed likely that no more than $5,000 was awarded for pain and suffering and the other $25,000 was awarded, as suggested by plaintiff's counsel, for loss of earnings and earning capacity; and no such award for loss of earnings or earning capacity could be sustained; it was Held that the court below properly granted a new trial.
Argued November 12, 1948.
Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.
Appeal, No. 229, Jan. T., 1948, from order of Common Pleas No. 3, Philadelphia Co., Sept. T., 1946, No. 2079, in case of Foster R. Miller v. Pennsylvania Railroad Company. Order affirmed.
Trespass for personal injuries.
The facts are stated in the opinion by FLOOD, J., of the court below, as follows:
In our opinion the interests of justice demand a new trial in this case.
Plaintiff argues that the damages of $30,000. awarded to him are not out of proportion to his injuries although he visited doctors no more than four times since the date of injury — three times according to his own testimony. In response to a leading question from his counsel, he said that he could not afford to go to the doctors. He was treated only for an injury to his wrist. The most important injury for which he sought compensation was an injury to the back which the specialist, called by the defendant, said was disabling. Despite the fact that plaintiff said that he thought the accident "snapped" his back in four or five places and that it was so stiff and sore that he could hardly move, yet according to Doctor Bucher who treated his wrist he sought treatment for nothing else. Plaintiff himself says that the doctor did not look at his back but did not say that he asked him to do so.
Whatever might be said as to the size of the verdict for pain, suffering and discomfort, a large verdict cannot be sustained on the testimony given in this case for loss of earnings or earning capacity. Plaintiff had worked only a few months out of the previous two years at wages in excess of what he had received after the injury. He had to abandon his railroad work because of a heart condition in 1944, and, after resuming in January 1946, he had to abandon it again in April, 1946. This work, he said, involved shovelling coal and climbing 100-foot ladders. He was evidently disabled by the heart condition from doing this type of work in 1944 and all the indications were that despite an effort to resume it, he was still disabled at the time of the accident. All we have against this is his own statement that he was going to apply for his old job and felt he was able to do it at the time the accident happened. Some time before and after the accident he worked for Mr. Mandino at $18. per week.
In his argument to the jury, Mr. Richter, evidently assuming that the plaintiff would but for the accident have resumed the work for the railroad which he had not been able to do for most of the previous two years, and assuming that he would have continued at that work until the retirement age of 65 or 70, told the jury that this loss of earnings, reduced to present worth, amounted to at least $25,000. and that they should start with that and add a sum for pain and suffering. I do not see that we can conclude that the jury, which was out a very short time, did anything other than follow his suggestion. In view of the almost total absence of medical treatment and the statements of the doctors who examined him immediately after the accident, it seems quite likely that no more than $5,000. was awarded as pain and suffering, and the other $25,000. was awarded as suggested by plaintiff's counsel for loss of earnings and earning capacity. This cannot be supported. It is true that we cannot be sure that this was the jury's action, but the court feels that this is what most likely happened. That the case miscarried was due to the fact the plaintiff's attorney misled the jury, and plaintiff must suffer for his counsel's error. In such a situation a remittitur would not correct the error. It can be corrected only by a re-trial.
The motion for a new trial is granted.
Appeal by plaintiff to Supreme Court allowed.
Joseph S. Lord, 3rd, with him B. Nathaniel Richter and Richter, Lord Farage, for appellant.
Owen B. Rhoads, with him J. Peter Williams and Philip Price, for appellee.
The order of the court below is affirmed on the opinion of Judge FLOOD.