Opinion
No. 8280.
Submitted October 13, 1943.
Decided April 18, 1944.
Personal Injuries — Master and Servant — Loss of Eye by Underground Miner — Excessive Verdict — New Trial. 1. In an action by an underground miner, fifty-eight years of age, for damages for a personal injury caused, while he was operating a power drill, by a small particle of steel striking and imbedding itself in his right eye, practically destroying the sight thereof, held that a verdict for $26,000 as prayed for in the complaint, was so excessive as to indicate passion and prejudice on part of the jury and to warrant reversal of the judgment with direction to grant defendant a new trial.
Excessiveness of verdict in action by person injured for impaired eye-sight, see note in 102 A.L.R. 1260. See, also, 15 Am. Jur. 635; 39 Am. Jur. 153.
Appeal from District Court, Park County, in the Sixth Judicial District; C.F. Holt, a Judge of the Eighth District, presiding.
Mr. Clarence E. Wohl and Mr. Vilroy C. Miller, for Appellant, submitted an original and a reply brief; Mr. Wohl argued the cause orally.
Messrs S.C. Ford, Wellington D. Rankin, Arthur P. Acher and Sam D. Goza, Jr., for respondent, submitted a brief; Messrs. Rankin and Acher argued the cause orally.
The verdict of the jury is excessive.
This Court has on various occasions defined the meaning of the phrase "excessive damages appearing to have been given under the influence of passion or prejudice." (See Chenoweth v. Great Northern Ry. Co., 50 Mont. 481, 148 P. 331, 332; Hall v. Northern P. Ry. Co., 56 Mont. 537, 186 P. 340, 344; Simpson v. Miller, 97 Mont. 328, 34 P.2d 528, 533; Ashley v. Saefway Stores, Inc., 100 Mont. 312, 47 P.2d 53, 62; also Gladstone v. Fortier, 70 P.2d 255, 263.)
At the time respondent sustained his injury he was earning $4.50 per day. During 1937, for a short while he was earning $5 per day. If we figure his earning power at $5 per day for twenty-seven days a month, Sundays excluded, his monthly earnings would amount to $135, and at $4.50 per day, $121. Just how much of the $26,000 the jury allowed respondent for pain and suffering is not known, and while he undoubtedly has suffered there is no evidence that he has had more pain than the average person so affected.
If we allowed $2,000 for pain and suffering then the balance of $24,000 would cover his loss of earnings and his diminished earning power. Investing this sum at 8% per annum he would receive a net income of $1,840 per year. At 6% per annum, $1,380 per year. These sums would more than return to respondent what he would have lost if he were totally disabled, and still leave the $24,000 intact.
In Cornell v. Great Northern Ry. Co., 57 Mont. 177, 187 P. 902, 904, the plaintiff recovered a verdict of $17,500 for personal injuries. On motion for a new trial the trial court held the judgment excessive by $6,500 and ordered a new trial unless plaintiff consented to a reduction in the verdict and judgment in that amount. Plaintiff agreed to the reduction and defendant appealed from the new judgment. The court there said: "The office of juries in such cases is to compensate the living plaintiff for the loss sustained by him, and not to endow his heirs."
It must be remembered that at the time of the trial respondent was over fifty-eight years of age and had a life expectancy of fifteen years, four months and twenty days. That would make him seventy-three years of age at his death. As a practical matter we must take cognizance of the fact that respondent would in no event, even with normal vision, be able to carry on the arduous occupation of mining until he reached that age. In fact it would be fairly safe to say that he had reached the climax of his working life as a miner at fifty-eight. As said in the case of Lewis v. Northern P. Ry. Co., 36 Mont. 207, 92 P. 469, 476: "Necessarily a man's physical condition becomes impaired by advancing age, and, as a consequence, his earning power is diminished thereby."
Counsel have been unable to find a case where the facts are similar to those in the instant case and where such a sizeable verdict has been rendered or upheld. A few cases involving an award for the loss of an eye will be set forth:
Ruck v. Milwaukee Brewery Co. (Wis.), 134 N.W. 914. Verdict for $7,000 where boy 16 1/2 years of age lost eye and suffered disfigurement of face.
Brossard v. Morgan (Wis.), 136 N.W. 181. Verdict for $6,000 where boy 17 years of age lost eye and suffered impairment of other and disfigurement.
Johnson v. Missouri P. Ry. Co. (Mo.), 9 S.W. 790. Verdict for $5,000 where 35-year-old section boss lost one eye and other eye impaired. Could only do one-half as much work as before injury.
Hocking v. Windsor Spring Co. (Wis.), 104 N.W. 705, 111 N.W. 685. Verdict for $5,000 where 21-year-old boy, painter by trade, lost eye.
Rollings v. Central Maine Power Co. (Me.), 91 A. 837. Verdict for $4,935 where 23-year-old boy lost one eye and suffered impairment of other and disfigurement of face. Earning power reduced.
Van Camp Hardware Co. v. O'Brien (Ind.), 62 N.E. 464. Verdict of $2,500 where child 8 years of age lost eye.
St. Louis Southwestern R. Co. v. Kidd, (Tex.), 269 S.W. 471. Verdict for $10,000 for loss of eye by 20-year-old machinist.
Mueller v. Holekamp (Mo.), 260 S.W. 118. Held $7,000 not excessive where 9-year-old boy lost eye and suffered scar on neck. Verdict reduced by trial court from $10,000.
Pelster v. Shamrock Boiler Co. (Mo.), 268 S.W. 890. Verdict of $6,000 where boiler factory employee lost one eye.
Loveless v. Cunard Min. Co. (Mo.), 201 S.W. 375. Verdict for $5,847 where miner lost one eye.
Missouri K. T.R. Co. v. Edmonds, (Okla.), 174 P. 1052. Verdict for $3,000 where railway mail clerk lost eye.
Adams v. Quincy O. K.C.R. Co. (Mo.), 229 S.W. 790. Verdict for $20,000 reduced to $12,500 for loss of eye suffered by 18-year-old boy who was through his first year of high school and was earning $3.75 per day.
Galveston H. S. Ry. Co. v. Contois (Tex.), 279 S.W. 929. Verdict for $10,000 for loss of right eye and one-half vision of left suffered by 31-year-old man who earned $200 per month while in army and $175 per month just prior to injury.
George B. Limbert Co. v. Waznitsky (Ind.), 133 N.E. 128. Verdict for $6,878 where iron moulder 36 years of age lost one eye and had vision of other impaired. Was incapacitated from following trade.
Lines v. Bateman (Miss.), 139 S. 159. Verdict for $12,000 reduced to $7,000 where 28-year-old nurse earning $100 per month lost one eye. Earning capacity was reduced by accident. Court said that average verdict for loss of an eye was $5,000 but allowed her $7,000 because of pain and suffering.
Missouri, etc., Ry. Co. v. Flood (Tex.), 70 S.W. 331. Verdict for $20,000 held excessive and new trial granted where 41-year-old locomotive engineer, earning $160 per month lost one eye and suffered impairment of other. Items of damage considered were pain and suffering, loss of earnings and diminished earning capacity. Had earned up to $215 per month. Was unable to follow occupation of locomotive engineer.
Haynes v. Maine Cent. R. Co. (Me.), 80 A. 38. Verdict for $12,821 reduced to $7,500 where 19-year-old fireman on locomotive lost one eye, one tooth and sustained fractured jaw and lacerated face.
Olwell v. Skobis (Wis.), 105 N.W. 777. Verdict for $12,000 reduced to $6,000 where woman bookkeeper lost one eye, suffered great pain and had appearance marred. Court said judgment for over $6,000 would be excessive.
Morris v. Missouri P. R. Co. (Neb.), 187 N.W. 130. Verdict for $12,000 reduced to $8,000 where section hand lost eye. Court said the average verdict was $6,500.
Counsel appreciate the fact that each case must be decided on its own merits and that no set rule can be fixed for measuring when a verdict is excessive and when it is not. However, what juries did in similar cases indicates in a general way what is considered a reasonable verdict in such a case. As was said in Morris v. Missouri P. R. Co., supra, the average verdict for the loss of an eye is $6,500.
This court has not as yet ruled on the question of what would constitute an excessive verdict in a case similar to the instant case, and while it has considered the matter of excessive verdicts in connection with other injuries we do not feel such cases would be of any material aid here. There can be no question here but that the jury rendered its verdict acting under passion or prejudice.
The jury did not award excessive damages.
In Kelly v. John R. Daily Co., 56 Mont. 63, 80, 181 P. 326, where a verdict for $10,000 was awarded a housewife who ate contaminated meat, the court said: "There is no standard fixed by law for measuring the value of human health or happiness. In every case of personal injury a wide latitude is allowed for the exercise of the judgment of the jury, and, unless it appears that the amount awarded is so grossly out of all proportion to the injury received as to shock the conscience, this court cannot substitute its judgment for that of the jury." (See, also, Burns v. Eminger, 84 Mont. 397, 412, 276 P. 437.)
In Bourke v. Butte Etc. Power Co., 33 Mont. 267, 290, 83 P. 470, it is said: "The amount must, of necessity, rest in the sound discretion of the jury, and courts are ever reluctant to interfere with the verdict upon the ground that it is excessive or insufficient. The parties are entitled to a verdict from the jury, and courts ought not to substitute their judgments for those of juries, except in those exceptional cases where it manifestly appears that the jurors made a mistake in calculation, considered an item or items of damages which should not have been considered, or abused that sound discretion which by the law is vested in them."
In Morris v. Baltimore O.R. Co. (W.Va.) 147 S.E. 759, a verdict for $25,000 was upheld where the principal injury was the loss of the sight of one eye. The loss of earning power was not discussed at all. The court said (P. 761.)
In Bell v. Milwaukee, Electric Ry. Light Co. (Wis.) 172 N.W. 791, 795, a verdict for $25,000 was upheld for an injury wherein one eye was totally blinded and the sight of the other was impaired.
In Ives v. United States (C.C.A. 2) 58 F.2d 201, an award of $20,000 was upheld and the court said: "With due consideration of the serious loss of sight, appellant's age, the handicap in his earning capacity, and permanent inconvenience due to the loss of sight of one eye and partial loss of sight of the second eye, an award of $20,000 will be allowed."
In Galveston v. Waldo (Tex.) 77 S.W.2d 326, a verdict for $15,000 was upheld for the loss of one eye and danger of impairment of the other eye.
In St. Louis-San Francisco Ry. Co. v. Stitt (Okla.) (1923), 233 P. 1073, a piece of steel had destroyed the sight of one eye. The court upheld a judgment for $20,000, saying: "Owing to the high cost of living, the greatly increased earning capacity of skilled mechanics and other conditions prevailing for the past several years, this court and the courts generally have been allowing larger verdicts to stand. In view of this, and the action of the court in approving a verdict for $20,000, we decline to interfere with it in the absence of any specific showing that it was the result of passion and prejudice."
In this connection it would be proper for the court to take into consideration the fact that the purchasing power of money is less now than it was many years ago. That purchasing power of money has decreased must be considered. (See Hurst v. Chicago, B. Q.F. Co. (1920), 219 S.W. 566.)
The trial court heard oral arguments on the motions for new trial and received written briefs and after full consideration denied the motion. This court has heretofore declared that it will not substitute its judgment for that of the jury, where the trial judge has approved the verdict by denying the motion for a new trial. Thus in Chancellor v. Hines Motor Supply Co. 104 Mont. 603-615, 69 P.2d 597, the court said: "On the question of excessive damages we have heretofore said: `This court will not substitute its judgment for that of the jury, especially where, as here, the trial court has approved the verdict by denying the motion for a new trial.'" ( Fulton v. Chouteau County Farmers Co., 98 Mont. 48, 37 P.2d 1025.) (See, also, Wright v. City of Butte, 64 Mont. 362, 371, 210 P. 78; Staff v. Mont. Petroleum Co., 88 Mont. 145, 159, 291 P. 1042.)
It is respectfully submitted that it cannot be said that the award is so grossly out of proportion to the injury received as to shock the conscience of the court, or to indicate that the verdict was prompted by passion and prejudice, which elements must be present to authorize this court to set the verdict aside.
This is an action for damages for an injury to plaintiff's eye. The defendant, a mining company, was operating under Plan 3 of the Workmen's Compensation Act, Rev. Codes 1935, sec. 2990 et seq. The plaintiff at the time of the accident was an underground miner operating a power driven drill in defendant's mine at Jardine and was 58 years of age at the time of the trial and without dependents. June 2, 1936, a small particle, subsequently found to be a piece of steel, flew off the drill and embedded itself in the plaintiff's right eye. Following the accident, plaintiff turned his equipment over to his helper, gave him some instructions relative to the day's unfinished work and went to the company office, contacting "Bill Andrews" to whom the plaintiff referred in his testimony as the "super" explaining that he meant superintendent, and told Andrews about his accident. The plaintiff testified that Andrews told him he would take him to the company doctor, Mrs. Davisson, and that they proceeded to Mrs. Davisson's place. Mrs. Davisson operated a rooming house in Jardine where most of the miners in the employ of the defendant had their living quarters.
Mrs. Davisson was a practical nurse with broad experience in that line of work, and there being no physician at Jardine and no regularly established physician's office nearer than Livingston, some sixty miles away, Mrs. Davisson fixed up a room at her boarding house which she used to render first aid to defendant's employees. She treated the plaintiff by injecting some sort of fluid in his eye and wiped the eye with raw cotton, and the latter operation is alleged to have been done in such a way as to force the piece of steel, afterwards found to have penetrated the eye ball, deeper into the eye thereby practically destroying the sight of the eye.
Mrs. Davisson, on June 14th, twelve days after she had cared for the plaintiff's eye, became ill, took to her bed and died on July 18th. Just prior to her last illness, she dressed the plaintiff's eye a number of times in the evening and morning, but the treatments ceased from June 14th. After the first treatment the plaintiff returned to his work and lost no time until March, 1937, some nine months later. In the month of March, 1937, he received an injury to his left eye and there being no one near by to whom he could go for treatment he was taken to Gardiner where Dr. Grew, an osteopath, rendered first aid, and the plaintiff returned to Jardine. The following day he went to Bozeman and was under the care of Dr. Whitehead there for some time.
In treating the plaintiff's left eye and making a test of plaintiff's vision generally, Dr. Whitehead discovered what he thought was a particle in the right eye, obviously the steel that penetrated the eye on June 2, 1936. The plaintiff's left eye was bandaged during the treatment by Dr. Whitehead and all vision from that eye was shut off and plaintiff testified that he could see all right out of his right eye at that time. Dr. Whitehead advised plaintiff to go to the St. James Hospital at Butte, on the medical staff of which institution there was a Dr. Spurck, a specialist in taking photographic X-rays and have his right eye X-rayed. The plaintiff did not act on this advice until August, 1937, but about that time became a patient at St. James Hospital under the care of Doctors Donovan and Morse, who had Dr. Spurck make the X-ray photographs of plaintiff's eye. They endeavored to remove the steel from the eye with a powerful magnet but were unsuccessful, and after treating the plaintiff some little time, during which he said he could feel the obstacle in the eye move under the force of the magnet, further treatment was abandoned.
On the advice of the Butte physicians the plaintiff went to Rochester where he was treated for some time. Plaintiff's testimony was rather unintelligible in many particulars and both his counsel, counsel for the defendant as well as the court had to inquire frequently of the court reporter and each other as to what the plaintiff said in his testimony. His sentences were composed of such a jumble of words having no coordination that one is often left to conjecture as to his meaning. But it was sufficiently clear from his testimony that while he was at Rochester some sort of an operation was made on his eye which caused the eye to bleed freely. No apparent relief resulted. He returned to Montana and on being advised that Dr. Murphy of Missoula had some new and powerful magnet he went to Dr. Murphy for treatment and it appears that after being treated he went back some twenty or thirty days later, by appointment, for further treatments, still without satisfactory result. Some time later he returned to Rochester for further treatment but obtained no substantial relief. On his return to Montana he contacted the Industrial Accident Board, seeking compensation but neither he nor the defendant had advised the board of his injury and no claim was made for more than two years and the Industrial Accident Board was without power under the statute to grant him any compensation. During the trial in the lower court he was asked why he had not applied to the Industrial Accident Board at the time of the accident for compensation and he answered that he had not lost any time and had nothing coming. Thereupon this action was commenced.
The complaint was filed October 7, 1938. A general demurrer thereto was filed February 20, 1939, which was sustained; and the plaintiff appealed to this court. February 14, 1940, we handed down an opinion holding that the complaint stated a cause of action and remanded the cause to the lower court with instructions to overrule the demurrer. Vesel v. Jardine Mining Co., 110 Mont. 82, 100 P.2d 75, 127 A.L.R. 1093. The only question in issue in that case was as to whether or not the complaint stated a cause of action.
The matter came on for trial on the merits March 24, 1941, [1] before the district court sitting with a jury. Numerous witnesses, including a number of medical experts testified at length and several exhibits were received in evidence. The evidence with the pleadings and instructions and the decree cover some five hundred pages. The jury returned a verdict for the plaintiff and fixed his damages at $26,000, the full amount alleged and demanded. A motion for a new trial was made and denied. The appeal is from the judgment. The action was heard in this court October 13, 1943, and has been under consideration since and the subject of extended conferences. The judgment of the lower court will be reversed and the cause remanded with instructions to grant the motion for a new trial. This conclusion has been arrived at chiefly on the ground that when measured by the amount of damages allowed for similar injuries in numerous cases found in the books, the award of $26,000 is grossly excessive. It is our opinion that the excessive amount of the damages fixed by the jury clearly indicates that passion and prejudice largely controlled their deliberations.
While it is generally conceded that it is the province of the jury to fix the amount of damages when such an award is made to the prevailing party, this and other courts not infrequently reduce the amounts so fixed by the jury or reverse the judgment and remand the cause for a new trial. (See Chenowith v. Great Northern Railway Co., 50 Mont. 481, 148 P. 330; Keller v. Safeway Stores, 111 Mont. 28, 108 P.2d 605, and other cases.)
The judgment in the instant case is reversed and remanded by virtue of subdivision 5 of section 9397, Revised Codes.
The following cases wherein awards of damages were made for loss of sight or injury to the eye are cited as an aid in determining what is a reasonable amount.
In Wojciech Stolarcz v. Interstate Iron Steel Co., 207 Ill. App.? 7, the plaintiff, twenty years of age, was allowed $25,000 for loss of both eyes by an explosion of hot slag.
In St. Louis, I.M. S. Ry. Co. v. True, 71 Okla. 264, 176 P. 758, a railroad foreman was awarded $20,000 for stone embedded in skull, resulting in loss of sight of both eyes. Certiorari denied, 249 U.S. 611, 39 S.Ct. 386, 63 L.Ed. 801.
In Bagaini v. Donk Bros. Coal Coke Co., 199 Ill. App. 76, the plaintiff, a coal miner, was awarded $10,000 for loss of sight of both eyes.
In P. Lorillard Co. v. Clay, 127 Va. 734, 104 S.E. 384, a young man twenty-one years of age was awarded $15,000 for loss of one eye, and other injuries.
In St. Louis S.W. Ry. Co. v. Kidd, Tex. Civ. App., 269 S.W. 471, $10,000 was awarded a machinist twenty years of age for loss of one eye caused by flying piece of steel from an operating lathe.
In United Verde Copper v. Wiley, 20 Ariz. 525, 183 P. 737, $7,500 was awarded a miner for loss of one eye.
In Mueller v. Holekamp, Mo. App., 260 S.W. 118, a nine year old boy was awarded $10,000 for the loss of one eye and other injuries, which was reduced to $7,000 on appeal.
In Pelster v. Shamrod Boiler Co., Mo. App., 268 S.W. 890, an employee in a boiler factory was awarded $6,000 for loss of eye from being struck by a sliver from a sledge hammer. The eye ball was removed.
In Emerson, Brantingham Co. v. Growe, 191 Ind. 564, 133 N.E. 919, superseding Ind. App., 125 N.E. 223, a mechanic was awarded $4,800 for loss of an eye.
In Missouri, K. T. Co. v. Edmonds, 73 Okla. 2, 174 P. 1052, a railway mail clerk was awarded $3,000 for loss of one eye.
In Boldt v. American Bottle Co., 208 Ill. App. 578, a workman was awarded $2,700 for loss of one eye.
In Roberts v. United Fuel Gas Co., 84 W. Va. 368, 99 S.E. 549, a nineteen year old boy was awarded $2,500 for loss of one eye.
In Newell v. Detroit, T. I.R. Co., 235 Mich. 687, 209 N.W. 813, a boiler maker twenty-four years of age was awarded $25,000 for loss of one eye, reduced to $15,000 in order to avoid a new trial.
In Wichita Falls N.W.R. Co. v. Daven, 74 Okla. 151, 177 P. 909, a skilled laborer, forty-seven years of age, was awarded $20,000 for shoulder and collar bones broken, broken wrist, muscles and ligaments of arm destroyed, one eye lost and other greatly impaired, paralysis of lip, and "terribly disfigured."
In Galveston, H. S.A.R. Co. v. Contois, Tex. Civ. App., 279 S.W. 929, a motorman thirty-six years of age was awarded $6,878 for loss of one eye and sight of the other greatly impaired.
In Hoffman v. City of St. Paul, 187 Minn. 320, 245 N.W. 373, 86 A.L.R. 198, a woman was awarded $5,200 for loss of one eye and other severe injuries.
In Schwarting v. Ogram, 123 Neb. 76, 242 N.W. 273, 81 A.L.R. 769, an award to a young girl student of $15,000 for serious personal injuries, affecting her general physical condition, impairment of eyesight, general debility of a permanent nature, medical testimony was to the effect that the injuries were progressing towards traumatic insanity, and the court declined to hold the award excessive.
In Howard v. Mobile O.R. Co., 335 Mo. 295, 73 S.W.2d 272, a locomotive fireman earning $180 per month, complete loss of sight of one eye and other sympathetically affected, qualified to run engine when his seniority entitled him to do so, left completely disabled as a fireman or engineer, was awarded $14,500.
In Dolgin v. McDonald, 151 A. 89, 8 N.J. Misc. 572, a woman twenty-four years of age was awarded $10,000 for destruction of sight of one eye, scarred face and inability to continue in former occupation.
In Wiggins v. Missouri-K.-T.R., 128 Kan. 32, 276 P. 63, a brakeman was awarded $17,500 for loss of sight of one eye; reasonable life expectancy thirty-four years; reduced to $12,500, on appeal and if not accepted new trial ordered.
In Teche Lines v. Bateman, 162 Miss. 404, 139 So. 159, a trained nurse, aged twenty-eight, awarded $12,000 for loss of one eye. On appeal reduced to $7,000 on condition if not accepted the case would be reversed and remanded for assessment of damages by another jury.
See numerous additional cases in annotation 102 A.L.R., pages 1259, et seq. The most the plaintiff could have obtained under the provisions of the Workmen's Compensation Act for the loss of the sight of both eyes would have been approximately $8,500.
The judgment of the lower court is reversed and the cause remanded with instructions to vacate its order denying the motion for a new trial and enter an order granting the same.
ASSOCIATE JUSTICES ERICKSON and ANDERSON concur.
MR. JUSTICE ADAIR concurs in the result.
I dissent. While I do not care to write an extended opinion, I feel bound to indicate that my dissent goes to the intimation that there may be a liability upon the facts disclosed by the record. I agree that the amount of the award indicates the presence of passion and prejudice, but I cannot assent to any conclusion that would indicate that the evidence as it was adduced was sufficient to support a verdict or a judgment in any amount in favor of plaintiff. I would point out briefly my reasons.
As I read and understand the opinion of this court upon the former appeal of this case ( Vesel v. Jardine Mining Co., 110 Mont. 82, 100 P.2d 75, 76, 127 A.L.R. 1093), the court held that the complaint stated a cause of action, the substance of which was that plaintiff contended that defendant had "assumed to render medical aid and attention to" him, and that defendant was negligent in selecting and employing an unskilled and incompetent person to care for him. In my opinion plaintiff upon the trial following the reversal by this court upon the former appeal failed to meet the burden which was upon him in at least two respects. The first one of these is that the evidence fails to show that defendant had assumed to render medical aid and attention to plaintiff, and the second one is that even though it had shown that an individual, claimed by plaintiff to have been superintendent of defendant company, had assumed to render such aid and attention, there is no evidence from which it can be found he had authority to make such engagement for defendant company in the light of the fact that defendant company carried compensation insurance to which plaintiff had assented.
If plaintiff had brought his action against the man claimed by him to have been the superintendent premised upon fraud resulting in a loss of his rights to make claim under the compensation insurance he might have been entitled to recover.
In my opinion, at least as far as the record in this case goes, the defendant company was not liable and the cause should be remanded with directions to enter judgment in favor of defendant company and against plaintiff.