65 Cal.2d 166, 28909, Beagle v. Vasold

• Citation: 65 Cal.2d 166,53 Cal.Rptr. 129,417 P.2d 673
• Date: 31 August 1966
• Docket Number: 28909
• Parties: Beagle v. Vasold
• Court: California Supreme Court

Page 166

65 Cal.2d 166

53 Cal.Rptr. 129, 417 P.2d 673

Carl BEAGLE, Plaintiff and Appellant,

v.

Elizabeth VASOLD et al., Defendants and Respondents.

L.A. 28909.

Supreme Court of California

Aug. 31, 1966.

In Bank

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Rubin, Seltzer & Solomon and Richard I. Singer, San Diego, for plaintiff and appellant.

Edward I. Pollock, Theodore A. Horn, Richard L. Oliver, Los Angeles, Robert G. Beloud, Upland, Robert E. Cartwright, San Francisco, Neil D. Heily, Oxnard, and Edward L. Lascher, Van Nuys, amici curiae on behalf of plaintiff and appellant.

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Higgs, Fletcher & Mack, Edward M. Wright and Dan E. Hedin, San Diego, for defendants and respondents.

Parker, Stanbury, McGee, Peckham & Garrett, Crider, Tilson & Ruppe, Betts & Loomis, Gilbert, Thompson & Kelly and Jean Wunderlich, Los Angeles, amici curiae on behalf of defendants and respondents.

MOSK, Justice.

Plaintiff brought an action against defendants for personal injuries suffered by him as the result of an automobile accident. The jury returned a verdict in his favor in the sum of $1,719.48, and he appeals from the judgment entered thereon, contending that the damages awarded are inadequate as a matter of law. The only issue raised on this appeal by any of the parties, including amici curiae, is whether the trial court erred in prohibiting plaintiff's counsel from stating in argument to the jury the amount of general damages claimed by plaintiff, either in terms of a total sum or of a sum for a time segment. We conclude it was error to restrict counsel's arguments in that regard.

Plaintiff's injuries resulted from an accident in which a car driven by Kenneth Vasold went over an embankment while rounding a curve in the road. Vasold died as a result of his injuries. Plaintiff and two other occupants of the car, Beverly Adams, and Vasold's wife, Elizabeth, were injured. ¹ In the complaint, plaintiff prayed for $61,025.18 in general damages, as well as compensation for medical expenses, loss of earnings, and costs of suit.

The trial court informed plaintiff's attorney in chambers that he would not be permitted to mention to the jury 'the value of his action in dollars' in a lump sum or as to 'any per diem damages such as so many dollars per day, or so many dollars per month' because '(S)uch is not evidence.' ² In

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accordance with this request, counsel confined his arguments on the question of damages to the amount of past and anticipated medical expenses and loss of earnings, a description of plaintiff's injuries, and general statements to the effect that plaintiff was entitled to recover for past and future pain and suffering resulting from the accident. ³ Plaintiff's medical expenses up to the time of trial were $1,377.48, and his total claim for special damages was $21,502.48. Thus the jury's verdict of $1,719.48 amounts to $342 more than the medical expenses incurred prior to trial. His motion for a new trial on the ground of inadequacy of the damages was denied by the trial court.

On this appeal, it is contended that the trial court's action in restricting the argument of counsel on the issue of general damages was erroneous and that the error was prejudicial.

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One of the most difficult tasks imposed upon a jury in deciding a case involving personal injuries is to determine the amount of money the plaintiff is to be awarded as compensation for pain and suffering. No method is available to the jury by which it can objectively evaluate such damages, and no witness may express his subjective opinion on the matter. (See 7 Wigmore, Evidence (3d ed. 1940) § 1944, pp. 55--56.) In a very real sense, the jury is asked to evaluate in terms of money a detriment for which monetary compensation cannot be ascertained with any demonstrable accuracy. As one writer on the subject has said, 'Translating pain and anguish into dollars can, at best, be only an arbitrary allowance, and not a process of measurement, and consequently the judge can, in his instructions, give the jury no standard to go by; he can only tell them to allow such amount as in their discretion they may consider reasonable. * * * The chief reliance for reaching reasonable results in attempting to value suffering in terms of money must be the restraint and common sense of the jury. * * *' (McCormick on Damages, § 88, pp. 318--319.)

Before turning to the question of the propriety of the so-called 'per diem' argument, ⁴ it is significant to note that, while no case has been found specifically holding an attorney may inform the jury as to the total amount of the general damages sought by the plaintiff, there is a clear implication that such a statement may be made by an attorney, and defendants here to not seriously challenge plaintiff's assertion that the trial court erred in limiting counsel's argument in this regard.

It has long been a courtroom practice of attorneys in this state to tell the jury the total amount of damages the plaintiff seeks, and no questioning of the technique has come to our attention. (See dissenting opinion of Carter, J., in Sanguinetti v. Moore Dry Dock Co. (1951) 36 Cal.2d 812, 823, 842; Ritzman v. Mills (1929) 102 Cal.App. 464, 472.) Moreover, an attorney may and frequently does read the complaint, including the prayer, to the jury. (Knight v. Russ (1888) 77 Cal. 410, 414--415; see Ritzman v. Mills, supra, 102 Cal.App. at p. 472.) Finally, the trial court may instruct the jury that the plaintiff claims a certain

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amount as damages in his complaint and that no more than this sum may be awarded. (Sanguinetti v. Moore Dry Dock Co., supra, 36 Cal.2d at p. 816; Lahti v. McMenamin (1928) 204 Cal. 415, 421; McNulty v. Southern Pacific Company (1950) 96 Cal.App.2d 841, 852--853.) In the Lahti case it was said that such an instruction 'is usually given in negligence cases, and it is difficult to understand how a jury in such class of cases can be properly instructed by the court' without a direction of this type. (204 Cal. at p. 421, 268 P. at p. 646; see also BAJI Nos. 173, 173--A, 173,--B, 173--C.) On the other hand, Pennsylvania and New Jersey prohibit disclosure of this information to the jury. (See Reese v. Hershey (1894) 163 Pa. 253, 29 A. 907; Porter v. Zeuger Milk Co. (1939) 136 Pa.Super. 48, 7 A.2d 77; Botta v. Brunner (1958) 26 N.J. 82, 138 A.2d 713, 725, 60 A.L.R.2d 1331.)

The question whether an attorney may argue to the jury that his client's damages for pain and suffering may be measured in terms of a stated number of dollars for specific periods of time presents a more difficult problem. Few issues in the area of tort law have evoked more controversy in the last decade. While no California case has decided the matter (but see dissenting opinion in Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 509, 15 Cal.Rptr. 161), the controversy has been resolved in most of our sister states and in some federal jurisdictions.

Twenty-one jurisdictions which have passed on the issue permit on attorney to make the 'per diem' argument. (Baron Tube Co. v. Transport Ins. Co. (5th Cir. 1966) 365 F.2d 858; Atlantic Coast Line Railroad Co. v. Kines (1963) 276 Ala. 253, 160 So.2d 869; Vanlandingham v. Gartman (1963) 236 Ark. 504, 367 S.W.2d 111; Newbury v. Vogel (1963) 151 Colo. 520; Evening Star Newspaper Co. v. Gray (D.C.Mun.App.1962) 179 A.2d 377; Ratner v. Arrington (Fla.App.1959) 111 So.2d 82; Southern Indiana Gas & Elec. Co. v. Bone (1962) 135 Ind.App. 531, 180 N.E.2d 375, affd. 244 Ind. 672, 195 N.E.2d 488; Corkery v. Greenberg (1962) 253 Iowa 846, 114 N.W.2d 327; Louisville & Nashville Railroad Co. v. Mattingly (Ky.1960) 339 S.W.2d 155; Little v. Hughes (La.App.1961) 136 So.2d 448; Eastern Shore Public Service Co. v. Corbett (1962) 227 Md. 411, 177 A.2d 701, affd. Md., 180 A.2d 681; Yates v. Wenk (1961) 363 Mich. 311, 109 N.W.2d 828; Flaherty v. Minneapolis & St. Louis Railway Co. (1958) 251 Minn. 345, 87 N.W.2d 633; Arnold v. Ellis (1957) 231 Miss. 757, 97 So.2d 744; Wyant v. Dunn

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(1962) 140 Mont. 181; Johnson v. Brown (1959) 75 Nev. 437; Grossnickle v. Village of Germantown (1965) 3 Ohio St.2d 96, 209 N.E.2d 442; Edwards v. Lawton (S.C.1964) 244 S.C. 276, 136 S.E.2d 708; Hernandez v. Baucum (Tex.Civ.App.1961) 344 S.W.2d 498; Olsen v. Preferred Risk Mutual Ins. Co. (1960) 11 Utah 2d 23; Jones v. Hogan (1960) 56 Wash.2d 23; see also Imperial Oil, Limited v. Drlik (6th Cir. 1956) 234 F.2d 4.) Of these jurisdictions, Florida, Montana, Nevada, Utah and Washington hold that the matter rests in the sound discretion of the trial judge. ⁵

In 11 jurisdictions the argument is not permitted. (Henne v. Balick (Del.1958) 1 Storey 369, 146 A.2d 394; Franco v. Fujimoto (Hawaii 1964) ; Caley v. Manicke (1962) 24 Ill.2d 390, 182 N.E.2d 206; Caylor v. Atchison, Topeka and Santa Fe Railway Co. (1962) 190 Kan. 261; Faught v. Washam (Mo.1959) 329 S.W.2d 588; Duguay v. Gelinas (1962) 104 N.H. 182, 182 A.2d 451; Botta v. Brunner (1958) supra, 26 N.J. 82, 138 A.2d 713, 60 A.L.R.2d 1331; Certified T.V. and Appliance Company v. Harrington (1959) 201 Va. 109, 109 S.E.2d 126; Crum v. Ward (1961), 146 W.Va. 421, 122 S.E.2d 18; Affett v. Milwaukee & Suburban Transport Corp. (1960) 11 Wis. 604, 106 N.W.2d 274, 86 A.L.R.2d 227; Henman v. Klinger (Wyo.1966) ; see also Paley v. Brust (1964) 21 A.D.2d 758, 250 N.Y.S.2d 356; King v. Railway Express Agency, Inc. (N.D.1961) 107 N.W.2d 509.)

The conflict has also been thoroughly debated in the law reviews. An examination of a large number of articles on the subject indicates that a substantial majority of the authors are

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of the view that it is desirable to permit 'per diem' argument. ⁶ (See generally Favoring 'per diem' argument: Phillips, Botta in Focus (1962) Trial Law. Guide 69; Note (1958) 12 Rutgers L.Rev. 522; Note (1962) 60 Mich.L.Rev. 612; Note (1959) 43 Minn.L.Rev....