Opinion
No. 28909.
November 24, 1930. Suggestion of Error Overruled, January 5, 1931.
1. JUDGMENT.
Supreme court judgment affirming judgment for personal injuries on issue of liability, but remanding case on question of damages, held res judicata on former question.
2. CONSTITUTIONAL LAW.
Judgment on appeal, in action governed by Federal Employers' Liability Act (45 U.S.C.A., sections 51-59) reversing case on issue of damages only, held not to deny due process (Constituion U.S. Amendment 14; Supreme Court Rule 13).
3. DAMAGES.
Where injured person has long life expectancy, court, in determining damages, must assume he will not remain idle to augment damages.
4. DAMAGES.
Damages for personal injuries cannot be determined by any fixed rule.
5. DAMAGES. Forty thousand dollars to switchman, thirty-one years old, with life expectancy of thirty-five years, earning over one hundred eighty-five dollars per month, for loss of right arm, and injuries to face and nose, held excessive by fifteen thousand dollars.
Switchman, when he fell from top of railroad car, struck ground with face, broke his nose, and skinned face, necessitating operation on nose to remove bones therefrom in order to improve breathing. Evidence showed that he could not breathe except with his mouth open. Right arm was amputated between shoulder and elbow. Switchman was not, however, wholly incapacitated for any kind of gainful occupation.
APPEAL from circuit court of Lee county. HON.C.P. LONG, Judge.
D.W. Houston, Sr. and Jr., of Aberdeen, E.T. Miller, of St. Louis, Mo., and J.W. Canada, of Memphis, Tenn., for appellant.
The court ordinarily, after having laid down principles governing a case on one appeal, will not review its holdings on a subsequent appeal, but will ordinarily adhere to its former decision and not inquire into its correctness. However, this rule is not so fixed and binding upon the court it may not depart from its former decision on a subsequent appeal if the former decision in its judgment after mature consideration is erroneous and wrongful and would lead to unjust results. Where the facts are the same, and where there has been no change of conditions or situations as that a change of decision would work wrong and injustice, the court may, on the subsequent appeal, correct its former decision where it is manifestly wrong. This court has, on more than one occasion, departed from its first announcement on subsequent appeal of the same case where there had been no change of conditions, or accrual of other rights that would be harmed or prejudiced by the other decision.
Brewer v. Browning, 115 Miss. 358, 76 So. 267; Maxwell v. Harkleroad, 77 Miss. 456, 27 So. 990; 2 R.C.L., p. 226, sec. 188; Missouri, K. T.R. Co. v. Merrill, 65 Kans. 436, 70 P. 358, 59 L.R.A. 711, 93 Am. St. Rep. 287.
The affirmance of the verdict and judgment on the issue of liability on the first appeal and the reversal and remand for new trial on the issue of damages alone, under Rules 12 and 13 of this court, as applied in this case, operated to deprive appellant of a substantive right vouchsafed to it by the Federal Employer's Liability Act, and to deprive appellant of the constitutional guaranty of due process of law under the 14th Amendment to the federal constitution.
A substantive right or defense arising under the Federal law cannot be lessened or destroyed by a rule of practice. Before granting partial new trials, in any case under the Federal Employers' Liability Act, it should, clearly appear that the matter involved is entirely distinct and separable from other matters involved in the issue and that no possible injustice can be done to either party. In cases of this character we do not know that the practice is generally to be commended.
Norfolk Southern R. Co. v. Ferebee, 238 U.S. 269.
The verdict of forty thousand dollars for the loss of an arm is excessive and so much as to evince passion and prejudice.
A. V. Ry. Co. v. Dennis, 128 Miss. 298, 91 So. 4; Williams v. Pickering Lbr. Co., 125 La. 1087, 52 So. 167; I. G.N. v. Brice, 111 S.W. 1094; Phippin v. Mo. P.R. Co., 196 Mo. 321, 93 S.W. 410; I. G.N. v. Shaugnessy, 18 S.W. 1026; Ewing v. Stickney, 107 Minn. 217, 119 N.W. 802; Railroad v. Fredericks, 71 Ill. 294; Knock v. Tonopah G.R. Co., L.R.A. 1915F, p. 3; T. Ft. W.R. Co. v. Hartnett, 33 Tex. Civ. App. 103, 75 S.W. 809; Struble v. Burlington, etc., Ry., 128 Iowa 158, 103 N.W. 142; C.R.I. P. Ry. Co. v. Batsel, 100 Ark. 526, 140 S.W. 726; Chenoweth v. G.N.R. Co., 50 Mont. 481, 148 P. 339; L. N. v. Lowe, 118 Ky. 260, 65 L.R.A. 122; Braxton v. W.J. S.R.R., 144 A. 179; U.P.R. v. Milliken, 8 Kans. 647; O'Connell v. American Sugar Co., 58 N.Y.S. 640; Truman v. K.C. Ry., 161 P. 587; Judd v. N YC.R., 149 N.Y.S. 733; U.P.R. Co. v. Hand, 7 Kans. 380; Waggoner v. Sneed, 138 S.W. 219; N.O. N.E.R.R. Co. v. Jackson, 145 Miss. 702, 110 So. 586; West v. Wabash Ry. Co., 6 S.W.2d 843.
Geo. T. Mitchell, of Tupelo, for appellee.
A verdict of forty thousand dollars for loss of an arm is not excessive where the evidence shows that the injured party was making one hundred eighty-five to two hundred dollars per month, was thirty-one years of age, and had a life expectancy of thirty-five and one-third years; and that his earning capacity, railroading being the only occupation he knew, was practically destroyed.
St. L.-San Francisco Ry. Co. v. Hays, 136 Miss. 701; Miss. Central R.R. Co. v. Lott, 118 Miss. 816; Y. M.V.R.R. Co. v. Dees, 121 Miss. 440; Looney v. N. W.R.R. Co., 48 A.L.R. 816; Y. M.R.R. Co. v. Putman, 118 U.S. 545; C. N.R.R. Co. v. Candler, 283 Fed. 881; Woods v. R.R. Co., 8 S.W.2d 922; Otos v. R.R. Co., 239 U.S. 349; R.R. Co. v. Anderson, 291 S.W. 590; Roeder v. R.R. Co., 165 N.Y. Supp. 167; Christman v. Union Ry., 200 N.Y. Supp. 800; Boyle-Farrell v. Haines, 256 S.W. 43; Bissinger v. Sac. Lodge, 203 P. 768; Dumphy v. N. W.R.R. Co., 10 A.L.R. 1152; Dailey v. Sov. Camp, 184 S.W. 920; Wichita Falls R.R. Co. v. Combs, 250 S.W. 714; Roeder v. Erie R.R. Co., 164 N.Y. Supp. 167; Toledo C. O.R.R. Co. v. Miller, 140 N.E. 617; N.O. N.E.R.R. Co. v. Snelgrove, 115 So. 394; Easterling Lumber Co. v. Pierce, 64 So. 461.
Lake Hays, of Memphis, Tenn., for appellee.
Many cases are collected in the Annotations of United States Compiled Statutes of 1916, 1923 Supplement, at pages 4273, et seq., and 4295, et seq., establishing beyond question that parties have no vested rights in particular remedies or modes of procedure, and that the equal protection and due process provided for in the Fourteenth Amendment are not violated by such rules of practice and procedure as have been promulgated by this court.
In actions for injuries to an employee under the Federal Employer's Liability Act, the federal law governs as to the substantive rights, while the state law governs as to matters relating to practice and procedure.
C. O. Ry. v. Deatley, 241 U.S. 310; I.C.R. Co. v. Johnston, 87 So. 866 (Certiorari denied, 41 Supreme Court, 218, 254 U.S. 654, and writ of error dismissed. Same v. Johnson, 41 Sup. Ct. 375, 255 U.S. 564).
In calculating damages in such a case as this, it is proper to calculate the present value of probable future earnings had the injuries not been suffered, to add to this an allowance for hospital and medical expenses and other losses and expenses prior to the trial, and to allow in addition an amount for the pain, suffering and inconvenience caused by the injuries.
C. N.R. Co. v. Candler, 283 Fed. 881; Vicksburg M.R. Co. v. Putman, 118 U.S. 545.
It is always a delicate task to measure pain, suffering, or permanent injury in terms of dollars and cents. This task primarily is the province and responsibility of the jury. In the present case the jury not only heard elaborate testimony for both sides, but had an opportunity to see the plaintiff and hear first hand his statements as to his physical condition and the extent of his pain and suffering; and we cannot say that this amount is not justified by the testimony.
Miss. Central R. Co. v. Lott, 118 Miss. 816; St. Louis S.F. Ry. Co. v. Hays, 136 Miss. 701; Mississippi Central R. Co. v. Hardy, 88 Miss. 732, 753, 41 So. 505.
A verdict of forty thousand dollars for loss of an arm in addition to other elements of damages present in this case, is not excessive.
Bosher v. Railroad Co., 15 F.2d 388; Woods v. Railroad, 8 S.W.2d 922; Otos v. Railroad, 239 U.S. 349; Railroad v. Anderson, 291 S.W. 590; Roeder v. Railroad, 165 N.Y. Supp. 167; Christman v. Union Ry. Co., 200 N.Y.S. 800; Boyle-Farrell v. Haines, 256 S.W. 43; Bissinger v. Sac Lodge, 203 P. 768; Dumphy v. N. R.R. Co., 10 A.L.R. 1152; Daily v. Sovereign Camp, 184 N.W. 920; Wichita Falls R. Co. v. Combs, 250 S.W. 714; Span v. Walker, etc., R. Co., 16 S.W. 191; Bryant v. I.C.R. Co., 252 Ill. App. 428; Olden v. Babicora Development Co., 290 P. 1062; Rigg v. Lewis, 145 A. 223; Lamar v. Collins, 252 Ill. App. 238; Wilson v. Consolidated, etc., Co., 145 A. 81; Roeder v. Erie R.R. Co., 165 N.Y.S. 167; Toledo C. O.R.R. Co. v. Miller, 140 N.E. 617; N.O. N.E.R.R. Co. v. Snelgrove, 115 So. 394; Easterling Lbr. Co. v. Pierce, 64 So. 461.
This is the second appeal of this case. The first appeal was reported in 156 Miss. 206, 125 So. 423. The judgment of lower court on that appeal was strictly in conformity with the directions of this court contained in the opinion.
When the mandate of this court reached the lower court, it exercised option 1 contained in the opinion and set forth in the judgment of this court, and entered its judgment accordingly, thereby declining to interfere with the original verdict and judgment of the lower court, and thereby indicating to this court its judgment that the verdict herein was not excessive.
Upon the hearing of this case in the lower court, counsel for the railroad company sought to have that court set aside the judgment of this court, to the effect that the judgment of the lower court was affirmed on the question of liability, and made the entire former record a part of its motion in the effort to have overruled the action of this court as reflected by its judgment.
The appellant invites us to review the question settled on the former appeal as to liability vel non upon precise points then presented to the lower court and to this court with an amplification of his argument therefor by the citation of additional authorities to the same effect as those which were before the court on the former appeal.
This court did not remand the case to the lower court leaving any question open except that the lower court pass upon the motion for a new trial on the question of the amount of damages awarded by the jury.
First. It will thus be observed that the lower court had no alternative, if it was of the opinion that the verdict was not excessive, except to enter its judgment as it did, and was without power to set aside the judgment of this court. The question of liability was foreclosed and settled by the judgment of this court, and the lower court, as well as this court, must treat the judgment of this court as res adjudicata of that question, there being no contention that the judgment of this court affirming the case on the separable question of liability was void, or that any kind of fraud entered therein. We must take it for granted that the evidence now again presented to us was originally considered both on the original hearing and in the suggestion of error filed and overruled in this cause, so we decline again to travel through the record on that proposition, for the reason that we think the question so far as we are concerned is now precluded, foreclosed, and finally settled in so far as this court has any power in the premises.
Second. It is now insisted that, because this case arose under the Federal Employers' Liability Act (45 U.S.C.A., sections 51-59) because the parties to the record were engaged in interstate commerce, the rules of this court and practice of this court as followed in the instant case, assuming the power to affirm on one separate issue and reverse on another, are violative of the Fourteenth Amendment, and deny to the appellant due process of law. This question has likewise been settled by this court, and is not new. In the case of Yazoo Mississippi Valley Ry. Co. v. Scott, 108 Miss. 871, 67 So. 491, L.R.A. 1915E, 239, Ann. Cas. 1917E, 880, rule 13 of this court was set forth, the rule being found in 102 Miss. 905, 59 So. ix, and this court held that this rule as enforced did not violate the due process of law clause of the constitution. In other words, this court had the power to reverse a case and grant a new trial on the issue of damages alone, and thereby did not deprive an appellant of property without due process of law. We think it only necessary to refer to that one case. But later in the case of New Orleans Northeastern R. Co. v. Snelgrove, 148 Miss. 890, 115 So. 394, this court applied the same rule to a case where the parties to the record were engaged in interstate commerce under the Federal Employers' Liability Act (45 U.S.C.A., sections 51-59). We think it is clear that the method of procedure had in this case is not a matter of substance, but a mere matter of procedure, and, while we recognize, of course, that the supreme court of the United States holds that the federal law governs as to the substantive rights of the parties, at the same time it distinctly recognizes that the state law governs as to matters relating to the practice and procedure thereof. What this court in the instant case did was to simply remand the case to the lower court to have the judge of that court pass on the motion for a new trial on the question of the amount of damages only, and for no other purpose.
Third. The case is now before us upon the sole question of the amount of the judgment of the court below upholding the verdict of the jury for forty thousand dollar damages in this case. The lower court having passed upon that question and approved the verdict of the jury, it is now before us to say whether or not, in our opinion, the verdict in this case is so excessive as to indicate that it (the verdict) was a result of passion or prejudice on the part of the jury.
The record shows that the appellee was knocked from the top of a railroad car, that his head first came in contact with the top of the car, that he rolled therefrom, "struck the ground with his face," broke his nose, skinned his face, the trucks of the car which caused his injury ran over his right arm, and he had cut places on his face, his nose was so injured that subsequent to his recovery from the amputation of his right arm he required an operation on his nose, which was performed and some bones removed therefrom, in order to improve his breathing. He and his wife testified that both from the injury to his arm and the injury to his nose he suffered great pain, that, although he had the operation upon his nose, at the time of the trial he could not breathe, and could not engage in remunerative labor for the reason he could only breathe with his mouth open, and that he was skilled only in the work of a switchman on a railroad, and with the loss of his right arm, amputated between the shoulder and elbow, he was unable to pursue a gainful occupation. At the time of his injury he was an ablebodied, healthy man, earning from one hundred eighty-five to two hundred dollars per month as a switchman. He was a right-handed man, and was about thirty-one years of age, and had a life expectancy of more than thirty-five years. He testified that he feels like his arm is still attached to his body but is cold all the time, that he suffers from his nose and from his arm, and that breathing through his mouth requires exertion.
He was in the hospital ten days at the time he lost his arm.
The appellee insists that the amount of the verdict in this case is not excessive under this state of facts, for the reason that the present value of his life expectancy is in excess of thirty thousand dollars, and that in his maimed condition ten thousand dollars is not excessive for the pain which he has suffered and may have to endure in the future. This court said in its former opinion that the verdict was far in excess of any verdict allowed to stand in this state for a similar injury. It then becomes our duty now to say whether or not we think, in the light of the action of the circuit judge, this verdict is excessive to the extent that passion and prejudice of the jury is evinced.
While it is true we do not have the opportunity to see the injured man, a very great advantage which the trial court and the jury have over this court, yet, when the amount of the verdict is far in excess of what has been allowed for similar injuries, we feel that we must apply our judgment to the existent facts as they appear from the record. It is a delicate duty, but we are of opinion that forty thousand dollars is an excessive verdict in this case. Assuming, as we do, that the injuries occurred because of the negligence of the appellant, and that there was no negligence on the part of the appellee, and having reached the conclusion that the verdict is excessive, we are of the opinion that, while the injuries are as detailed, we do not think it can be safely said from this record that during the period of his life exectancy the appellee will be wholly incapacitated for any kind of gainful occupation. The occupation for which he had prepared himself is gone and cannot be restored to him, but he has a long life expectancy, and we must assume that he will not be permitted to sit idly by in order that damages assessed in his favor against a corporation which has injured him may be augmented. An analysis of authorities from this court and from the courts of this country will be fruitless and profitless. There is no fixed rule by which a court can accurately determine in exact figures the amount to be awarded. After all is considered, the action is more or less arbitrary within limits, and so it must be in this case. We think the verdict is excessive to the extent of fifteen thousand dollars, and that twenty-five thousand dollars would be adequate compensation for all the elements of damage which the appellee sustained.
If the appellee shall enter a remittitur in the sum of fifteen thousand dollars, the judgment of the court below will be affirmed for twenty-five thousand dollars; otherwise said judgment will be reversed and this cause will be remanded for a new trial before the jury on the question of damages alone.
Affirmed with remittitur; otherwise reversed.