Affett v. Milwaukee & Suburban Transport Corp.

Decision Date29 November 1960
Citation86 A.L.R.2d 227,106 N.W.2d 274,11 Wis.2d 604
Parties, 86 A.L.R.2d 227 Gladys AFFETT, Plaintiff-Respondent, v. MILWAUKEE & SUBURBAN TRANSPORT CORPORATION, Defendant-Appellant.
CourtWisconsin Supreme Court

Kivett & Kasdorf, Milwaukee, John M. Swietlik, Milwaukee, of counsel, for appellant.

Schneiderman & Strnad, Milwaukee, for respondent.

Irving D. Gaines, Milwaukee, amicus curiae.

HALLOWS, Justice.

In his closing arguments to the jury, the plaintiff's counsel used a blackboard to display and suggest to the jury a mathematical formula for the computation of damages for pain and suffering. Before arguments, the trial court stated it would permit the use of the blackboard for such purpose. Objection was made by counsel for the defendant. At the close of the plaintiff's argument the defendant desired to use the blackboard and the plaintiff's counsel was allowed to take a flash-bulb photograph of the blackboard in the presence of the jury. The photograph was not submitted to the jury and it was understood that it was taken so that it could be made a part of the record in event of an appeal.

The plaintiff's damages were set forth on the blackboard as shown in the footnote. 1 The record does not disclose the language used by the plaintiff's counsel in his summation to the jury. The defendant's brief states and it is not denied the plaintiff's counsel argued to the jury he multiplied the $1.50 per day by 365 days and then multiplied that sum by twenty, which was the life expectancy of the plaintiff in years, and thereby arrived at the total of $10,950. While we would prefer to have before us a transcript of the language of the summation arguments with respect to the blackboard figures for pain and suffering, the issue is adequately raised and briefed. The present record is sufficient to permit this court to determine the propriety of permitting counsel for the plaintiff to present to the jury a mathematical formula setting forth on a per diem basis the amount determined by the plaintiff as her damages for pain and suffering.

This assignment of error raises a question over which there has been considerable controversy of late in other states. The exact point has apparently not been determined by this court. However, we have held closing arguments of counsel are to be confined to facts in the evidence or to what may be properly inferred from the evidence. Brown v. Swineford, 1878, 44 Wis. 282. The mentioning of figures or a range of figures for such damages by the trial court in its instruction has been disapproved. Bergeron v. Peyton, 1900, 106 Wis. 377, 82 N.W. 291; Candrain v. Miller, 1898, 98 Wis. 164, 73 N.W. 1004; Ulrich v. Schwarz, 1929, 199 Wis. 24, 225 N.W. 195, 63 A.L.R. 886. Mentioning by the trial court in its instructions of a dollar amount which the jury should not exceed in its determination has been held error. Otto v. Milwaukee Northern R. Co., 1912, 148 Wis. 54, 134 N.W. 157; Hupfer v. National Distilling Co., 1906, 127 Wis. 306, 106 N.W. 831; Jacoby v. Chicago, M. & St. P. R. Co., 1917, 165 Wis. 610, 161 N.W. 751, 164 N.W. 88. The rationale of these cases is that such comment by the trial court invades the province of the jury, which under our system of jurisprudence is to make the initial determination of unliquidated damages. If such an award is the result of passion, prejudice, failure to follow instructions, or unreasonable because of insufficiency or excessiveness, the trial court and this court on appeal may set it aside or modify it.

We have disapproved statements of counsel to the jury that a certain sum of money would not compensate for the injuries sustained. Larson v. Hanson, 1932, 207 Wis. 485, 489, 242 N.W. 184, 186, ('There is not a man of you that would trade his left hip for $30,000'); Taylor v. Chicago & Northwestern R. Co., 1899, 103 Wis. 27, 30, 79 N.W. 17 (a statement to the effect that the plaintiff was not asking too much when she measured her damages at $25,000 and that no amount of money could place her where she was before receiving the injuries complained of); Higgins v. Stang, 1928, 195 Wis. 498, 218 N.W. 832, (in effect, take all the gold in all the banks of the world and pile it up at the feet of the plaintiff and offer it to him and it would not compensate him for the injuries he sustained); Hardware Mut. Cas. Co. v. Harry Crow & Son, Inc., 1959, 6 Wis.2d 396, 94 N.W.2d 577, (argument to the effect that the defendant's counsel would not place his leg under a truck wheel for any amount of money). When an attempt was made before this court to compare verdicts for pain and suffering on an hourly basis to demonstrate damages were excessive, this court stated in Hamilton v. Reinemann, 1940, 233 Wis. 572, 582, 290 N.W. 194, 198, 'We think that defendants are too mathematical in their approach to this subject, and that conscious pain and suffering cannot be reduced to an hourly basis. It is extremely doubtful if it can be reduced to any formula that will constitute a satisfactory rationale for other cases.'

The test for determining damages for pain and suffering at common law and in this state has been what the jury considers will reasonably compensate the plaintiff for the pain and suffering considering its nature, intensity and extent as disclosed by the evidence. Within the last ten years some counsel in this state have developed a trial technique of appealing to the jury to follow their mathematical formulas in determining damages for pain and suffering. We take notice that a few of our trial judges have allowed this type of argument and the use of a blackboard or a chart for that purpose. The majority of the judges have not permitted such arguments. Likewise, among the other jurisdictions which have considered this problem there is a sharp difference of opinion, some disapproving, 2 and others approving. 3 Some of the leading cases, but by no means all, are found in the footnotes. The arguments, pro and con, are summarized in Ratner v. Arrington, Fla.App.1959, 111 So.2d 82, 88, as follows:

'Authorities opposing per diem amount arguments as to damages for pain and suffering give varied reasons: (1) that there is no evidentiary basis for converting pain and suffering into monetary terms; (2) that it is improper for counsel to suggest a total amount for pain and suffering, and therefore wrong to suggest per diem amounts; (3) that to do so amounts to the attorney giving testimony, and expressing opinions and conclusions on matters not disclosed by the evidence; (4) that juries frequently are misled thereby into making excessive awards, and that admonitions of the court that the jury should not consider per diem arguments as evidence fail to erase all prejudicial effect; (5) that following such argument by plaintiff, a defendant is prejudiced by being placed in a position of attempting to rebut an argument having no basis in the evidence, with the result that if he does not answer plaintiff's argument in kind he suffers its effect on the jury, but if defendant does answer in kind he thereby implies approval of the per diem argument for damage determination for pain and suffering.

'Authorities approving such arguments give numerous reasons: (1) that it is necessary that the jury be guided by some reasonable and practical considerations; (2) that a trier of the facts should not be required to determine the matter in the abstract, and relegated to a blind guess; (3) that the very absence of a yardstick makes the contention that counsel's suggestions of amounts mislead the jury a questionable one; (4) the argument that the evidence fails to provide a foundation for per diem suggestion is unconvincing, because the jury must, by that or some other reasoning process, estimate and allow an amount appropriately tailored to the particular evidence in that case as to the pain and suffering or other such element of damages; (5) that a suggestion by counsel that the evidence as to pain and suffering justifies allowance of a certain amount, in total or by per diem figures, does no more than present one method of reasoning which the trier of the facts may employ to aid him in making a reasonable and sane estimate; (6) that such per diem arguments are not evidence, and are used only as illustration and suggestion; (7) that the claimed danger of such suggestion being mistaken for evidence is an exaggeration, and such danger, if present, can be dispelled by the court's charges; and (8) that when counsel for one side has made such argument the opposing counsel is equally free to suggest his own amounts as inferred by him from the evidence relating to the condition for which the damages are sought.'

Many cases are cited in the briefs submitted which do not squarely hold either for or against the use of a mathematical formula. For instance, in Imperial Oil, Ltd. v. Drlik, 6 Cir., 1956, 234 F.2d 4; 352 U.S. 941, 77 S.Ct. 261, 1 L.Ed.2d 236, the trial in an admiralty case used the mathematical formula in determining damages. The circuit court stated the method was novel but did not result in a verdict which was manifestly unjust as a matter of law, and approved the verdict. The problem has been variously treated in legal literature. 4

We believe that the arguments advanced disapproving the use of a mathematical formula are more persuasive. The use of a mathematical formula is pure speculation by counsel, which is not supported by the evidence and presents matters which do not appear in the record. The formula may be used to arrive at a gross figure by taking an arbitrary amount of money per day and multiplying it by the number of days in a year, times the number of years of the life expectancy of the plaintiff. Logically, if this method were followed, the gross amount arrived at should be discounted to its present worth. Seldom is pain constant for the entire life expectancy of the plaintiff, and if the evidence showed that it would be, the intensity of pain normally varies....

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