Hysell v. Iowa Public Service Co., s. 76-1744

Decision Date12 July 1977
Docket Number76-1847 and 76-1863,Nos. 76-1744,s. 76-1744
Citation559 F.2d 468
CourtU.S. Court of Appeals — Eighth Circuit
PartiesRichard Henry HYSELL and Barbara Hysell, Appellees, v. IOWA PUBLIC SERVICE COMPANY, and the City of Sioux City, Iowa, Appellants, v. Thurman SIMPSON, Appellant, and Irving F. Jensen Company.

Frank Jacobs (argued), and Dewie J. Gaul, Jacobs, Gaul, Nymann & Green, Sioux City, Iowa, on brief, for Iowa Public Service Co.

Maurice B. Nieland (argued), and Robert E. Beebe and Kindig, Beebe, McCluhan, Rawlings & Nieland, Sioux City, Iowa, on brief, for Thurman Simpson.

William E. Kunze (argued), Gleysteen, Harper, Kunze, Eidsmoe & Heidman, Sioux City, Iowa, and Sam W. Masten, Canton, S.D., on brief, for appellee, Richard Henry Hysell.

Patrick C. McCormick, Sioux City, Iowa, made rebuttal and on brief, for City of Sioux City, Iowa.

Before MATTHES, Senior Circuit Judge, and WEBSTER and HENLEY, Circuit Judges.

WEBSTER, Circuit Judge.

In this second appeal from a diversity personal injury action, we review only the contention of appellants that the $1,500,000 in damages awarded to the plaintiff Richard Hysell was excessive.

Hysell, a construction worker on a road project in Sioux City, Iowa, sustained injuries on May 18, 1973, when he came in contact with a boom truck which was touching a high voltage power line. The case was tried to the court, which awarded Hysell $1,500,000 and Mrs. Hysell $200,000 in damages. Liability was assessed against Iowa Public Service Co. (IPS), which owned the power line, and the City of Sioux City, which frequently sent inspectors to the construction area and had paid certain costs of the road paving project on which Hysell was engaged when he was injured. The District Court found that the City was entitled to indemnity from IPS under the latter's franchise agreement; that IPS was not entitled to indemnity from Jensen Company, Hysell's employer; and that IPS was not entitled to indemnity or contribution from Thurman Simpson, operator of the boom truck.

On appeal by IPS, a panel of this Court affirmed the liability findings of the District Court, 1 with the exception of the finding that IPS was not entitled to contribution from Simpson; this finding was reversed. In addition, IPS had challenged in this Court the award of $1,500,000 to Richard Hysell, as without support in the evidence and erroneously excessive. The District Court's $1,500,000 award was unsupported by the specific findings of fact required by Fed.R.Civ.P. 52(a). Rather than entertain the claim of excessiveness, we vacated the judgment and remanded the case to the District Court "for further explication and itemization of the award of damages," Hysell v. Iowa Public Service Co., 534 F.2d 775 (8th Cir. 1976), and entry of a new judgment.

On remand, the District Court made additional findings of fact on the damages issue. It made specific awards of damages in fourteen categories; the total awarded is $1,500,000, the same amount the court awarded in its initial judgment. This new judgment was entered on July 30, 1976.

IPS again appeals, contending that the $1,500,000 award is excessive, and that interest should be awarded only from the date of entry of the second judgment. Thurman Simpson also appeals, challenging the excessiveness of the judgment. Finally, Sioux City, which did not appeal the first judgment, also seeks to challenge the second judgment as excessive. We affirm.

I. Hysell's Injuries

It is undisputed that Richard Hysell has suffered extremely painful, permanently-disabling injuries. The findings of the District Court, which as to the facts of Hysell's injuries are substantially uncontested, can be summarized as follows:

As a result of the accident, Hysell suffered burns of both legs, resulting in amputation above the knees, and of the left arm, resulting in amputation above the elbow. He also suffered a deep burn to his right side, resulting in weakening of the abdominal wall; kidney damage of as yet undetermined extent; burns and scarring of his left shoulder resulting in seventy-five percent limitation of motion; and other burns and injuries. He has undergone at least nine surgical procedures. He has suffered, and continues to suffer, "phantom pain" in the amputated limbs. He has been totally disabled, and is unable without assistance to perform even simple daily tasks. Someone must be constantly in attendance to care for his needs.

Prostheses have been used in his treatment, with some limited success, but their usefulness is limited by the nature of his injuries. Hysell has suffered serious mental distress, including a reluctance to go out in public, because people stare at him in horror.

Hysell has suffered certain economic injuries which are undisputed: past medical expenses ($40,964.12), estimated future medical expenses ($20,150.00), future cost of prostheses ($45,500.00), auto devices ($1,800.00), past attendant care ($21,590.00) pretrial loss of earnings ($14,663.00), and necessary modifications to his home ($10,000.00). These amounts were included in the new judgment; neither the propriety of their inclusion nor the amounts awarded are challenged.

The District Court, in addition, awarded the following amounts, the propriety of which is in dispute: past and future pain and suffering ($300,000.00), disability to person ($132,700.00), future attendant care ($578,295.84), lost earning capacity ($233,622.04), past non-paid work services ($2,474.00), future non-paid work services ($51,034.00), and lost services ($47,207.00).

II. Standard of Review

As we indicated in our opinion in the first appeal, "The amount of damages entered as the judgment in a non-jury case is within the ambit of the discretionary powers of the District Court, although the standard of review is ultimately that of the 'clearly erroneous' concept of Fed.R.Civ.P. 52(a)." Hysell v. Iowa Public Service Co., 534 F.2d 775, 786 (8th Cir. 1976) (footnote omitted); see Howard v. Green, 555 F.2d 178 (8th Cir. 1977). This Court has in the past intervened to reduce a verdict for excessiveness "only in those rare situations where we are pressed to conclude that there is 'plain injustice' or a 'monstrous' or 'shocking' result." Hysell v. Iowa Public Service Co., supra, 534 F.2d at 786 n.8, quoting Solomon Dehydrating Co. v. Guyton, 294 F.2d 439, 447-48 (8th Cir.), cert. denied, 368 U.S. 929, 82 S.Ct. 366, 7 L.Ed.2d 192 (1961). See also Nodak Oil Co. v. Mobil Oil Corp., 533 F.2d 401, 410 (8th Cir. 1976); Slatton v. Martin K. Eby Construction Co., 506 F.2d 505, 508 (8th Cir. 1974), cert. denied, 421 U.S. 931, 95 S.Ct. 1657, 44 L.Ed.2d 88 (1975); Snodgrass v. Nelson, 503 F.2d 94, 96 (8th Cir. 1974); Zatina v. Greyhound Lines, Inc., 442 F.2d 238, 242-43 (8th Cir. 1971). 2

Because this is a diversity case, we must take care that the damage award does not exceed that which could be sustained were the case before the highest court of the state whose substantive law gives rise to the claim. Morrow v. Greyhound Lines, Inc., 541 F.2d 713, 721 (8th Cir. 1976); Bankers Life & Casualty Co. v. Kirtley, 307 F.2d 418, 423 (8th Cir. 1962); National Food Stores, Inc. v. Utley, 303 F.2d 284, 286-87 (8th Cir. 1962). In this action the governing law is that of the State of Iowa. 3

In addition, apart from any claim of excessiveness, we are required to vacate any portion of a damage award that is intended to compensate for injury that is not compensable under the governing substantive law.

III.

With these principles in mind, we examine appellants' challenges to the various amounts awarded Hysell.

A. Pain and Suffering

Appellants claim that the $300,000 awarded to Hysell for past and future pain and suffering is excessive.

Under Iowa law, a tort victim may be compensated for the pain and suffering he incurs. His recovery may include compensation for future pain and suffering. See Ehlinger v. State of Iowa, 237 N.W.2d 784, 792 (Iowa 1976); Schnebly v. Baker, 217 N.W.2d 708, 726 (Iowa 1974); Mabrier v. A. M. Servicing Corp. of Raytown, 161 N.W.2d 180, 183 (Iowa 1968). It may also include damages for mental and emotional harm. See Leahy v. Morgan, 275 F.Supp. 424, 426 (N.D.Iowa 1967). Because there is "no market in pain and suffering" 4 any attempt to assign monetary value is necessarily inexact, and the trier of fact must be afforded wide discretion in determining what is fair compensation.

Hysell suffered the pain of severe burns over large parts of his body and the amputation of three limbs. He was subject to repeated hospitalization and nine surgical procedures. He suffers "phantom pain" in the missing limbs and further pain in the use of his prostheses. He has endured a period of severe depression and cannot leave his home without fear and anxiety. We cannot say that allowing $300,000 as compensation for this injury is such a "plain injustice" or "monstrous or shocking result" as to warrant reducing this portion of the verdict for excessiveness. Nor does the amount awarded exceed that which would likely be sustained by the Supreme Court of Iowa. 5

B. Disability to Person

In addition to pain and suffering, the District Court awarded Hysell $132,700.00 for the disability to his person, as compensation for the severe limitations placed on his mobility by his injuries. Appellants claim that this was an improper duplication of the award for pain and suffering.

Duplication of recovery by compensating a single injury under two different names is, of course, to be avoided. See DeWall v. Prentice, 224 N.W.2d 428, 434 (Iowa 1974) (to allow award for loss of earnings and loss of support as a parent is improper duplication of recovery); Adams v. Deur, 173 N.W.2d 100, 108 (Iowa 1969). Pain and suffering and disability are related; the two, however, are separate injuries. The former includes all the items discussed above: physical pain and suffering, and mental anguish resulting therefrom. Disability,...

To continue reading

Request your trial
59 cases
  • Occhino v. U.S., s. 81-1747
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • August 25, 1982
    ...294 F.2d 439, 447-48 (8th Cir.), cert. denied, 368 U.S. 929, 82 S.Ct. 366, 7 L.Ed.2d 192 (1961), later app. Hysell v. Iowa Public Service Co., 559 F.2d 468 (8th Cir. 1977). Under our standards the present award cannot be said to require reversal or modification. The award in fact reflects c......
  • Coe v. County of Cook, 98-1164
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 4, 1998
    ...Realty Corp., 943 F.2d 335, 342-45 (3d Cir.1991); LaFaut v. Smith, 834 F.2d 389, 394 n. 9 (4th Cir.1987); Hysell v. Iowa Public Service Co., 559 F.2d 468, 476 (8th Cir.1977); Spann v. Colonial Village, Inc., 899 F.2d 24, 33 (D.C.Cir.1990); Tug Raven v. Trexler, 419 F.2d 536, 548 (4th Since ......
  • Michels v. US, 4-91-CV-30096.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • March 18, 1993
    ...of damages under Iowa law. Sallis v. Lamansky, 420 N.W.2d 795, 798 (Iowa 1988); Holmquist, 261 N.W.2d at 525; Hysell v. Iowa Public Serv. Co., 559 F.2d 468, 473 (8th Cir.1977). An impairment of a party's physical capacity creates an inference that the party has a lessened earning capacity. ......
  • Mathias v. Superintendent Frackville SCI, s. 14-4694 & 15-2694
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 28, 2017
    ...period for filing her notice ... that she intended to appeal the court's punitive damages ruling." Id. And in Hysell v. Iowa Public Service Company , 559 F.2d 468 (8th Cir. 1977), the Eighth Circuit vacated a judgment entered against a party not actually before it, notwithstanding that the ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT