Alabam Freight Lines Thevenot

• Decision Date: 14 March 1949
• Docket Number: 5092
• Citation: 204 P.2d 1050,68 Ariz. 260
• Parties: ALABAM FREIGHT LINES THEVENOT
• Court: Arizona Supreme Court

204 P.2d 1050

68 Ariz. 260

ALABAM FREIGHT LINES THEVENOT

No. 5092

Supreme Court of Arizona

March 14, 1949

[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Stanford Justice. Phelps and DeConcini, JJ., concurring. LaPrade, Chief Justice, and Udall, Justice (dissenting).

OPINION

Stanford, Justice.

On Rehearing

Plaintiff (appellee) brought this action against the defendants (appellants) in the superior court to recover for personal injuries and property damage resulting from a collision caused by the negligence of the defendants.

Defendants admitted their liability leaving for the determination of the jury only the amount that plaintiff should recover.

The personal injuries resulted in a permanent partial disability of the plaintiff, who was then a man of the age of twenty-six years, having a wife and small daughter.

For thirty days immediately prior to the accident the net earnings of the plaintiff were $ 380. Plaintiff commenced the business of trucking in January, 1946, when he received a certificate of convenience and necessity from the Arizona Corporation Commission permitting him to engage in the trucking business.

On July 9, 1946, he was engaged in hauling cull cantaloupes from a packing shed on Grand Avenue in Maricopa County, Arizona. At about three o'clock in the afternoon he had loaded his truck with cantaloupes, and had driven out onto Grand Avenue and started toward the City of Phoenix. While on the right-hand side of the highway his truck was struck from the rear by a truck and semi-trailer of the defendant Alabam Freight Lines. The testimony shows that the truck of the defendant Alabam Freight Lines was traveling at a speed of about forty-five miles per hour at the time of the impact and that there was no slackening of speed prior to the same. Plaintiff's loaded truck was knocked some sixty feet and overturned with all four wheels in the air.

In addition to cuts and bruises all over the body of plaintiff, his left foot was badly mangled and crushed. A portion of the said foot was amputated. A second operation was required on September 3, 1946. In this operation plastic surgery was performed, skin being taken from plaintiff's thigh and grafted on to the wounded area. Some thirty areas of skin were thus transplanted. Plaintiff remained in the hospital from the date of the injury until September 25, 1946, and was continually under the care of a doctor until September 15, 1947. An artificial limb was recommended and obtained, but, because of the nature of the injury, the plaintiff could not bear his weight upon the stump without causing ulcerations at the place of amputation. It will be necessary hereafter to perform another operation and amputate the remaining portion of the foot and ankle except for the flap of the heel which, if sufficient, will be pulled over the stump of the bone to provide a weight-bearing pad. If this is not possible, the entire lower leg will have to be amputated at a point approximately six inches below the knee. Under the testimony it will require from three to six months following this operation before plaintiff can again be able to work.

The case was tried before a jury and a unanimous verdict was rendered in behalf of plaintiff in the sum of $ 55,000 for personal injury and $ 1,000 for damage to plaintiff's truck. After judgment was entered on the verdict, a motion for new trial was filed by defendants which was denied by the trial court on condition, however, that the judgment be remitted to $ 46,282.96, which remittitur was filed by the plaintiff pursuant to the court's order. This appeal was taken from the judgment and order denying the motion for new trial.

The three assignments of error submitted by the defendants are embodied in the proposition of law as follows:

"Where damages awarded for personal injury are excessive and appear to have been given by the jury under the influence of passion or prejudice, a new trial should be ordered or the verdict reduced to a reasonable amount."

In their argument defendants first rely on the rule in the case of Standard Oil Co. of Calif. v. Shields, 58 Ariz. 239, 119 P.2d 116, 119, in support of their contention. We quote from that case which is one of Arizona's leading cases on the subject of excessive damages:

"* * * She bases her argument on this point on the proposition that passion and prejudice can only appear when (a) improper evidence was admitted upon which the jury might have acted, (b) improper instructions of law were given which might have misled the jury, (c) the argument of counsel was outside the record and of such a nature as might have been calculated to arouse the prejudice of the jury, and (d) there is proof of some misconduct on the part of the jury, and that if none of these matters appear from the record, the court may not set aside a verdict on this ground. Any one of the causes mentioned by plaintiff would be sufficient, of course, to authorize an appellate court to presume passion and prejudice, but we think she has omitted a fifth ground, which is, when the amount of the verdict as compared with the legal damages shown by the evidence is so great as to shock the conscience of the appellate court. * * *

"The damages permissible in a case of this nature may be divided legally into three classes, (a) out of pocket expenses for past and prospective medical and other items rendered necessary by the accident, and damage to plaintiff's automobile. These may be calculated with reasonable certainty; (b) loss of earning power by reason of injury, which may be calculated on an evidentiary basis, although not always with the same certainty as the first class; and (c) pain and suffering, past and prospective. This last, of course, is an item for which no definite rule of estimation may be given and, therefore, a great amount of discretion may, and properly should, be left to the jury. But even here we think there is a limit. It is often said in argument on this point, 'For how much would a man be willing to suffer the same injuries as those which plaintiff has suffered.' This, of course, is not a proper test of legal damages. No man in his senses would accept any sum to undergo voluntarily the pain and suffering caused by many of the injuries which appear in negligence cases, and yet a verdict for pain and suffering, past and prospective, caused by such an injury might well be so excessive that we would be compelled to state it was based on sympathy for the victim and prejudice against the defendant, rather than a reasonable and dispassionate consideration of the whole situation."

Our comment here is that certainly within a nation that has its times of war; its times of depressions; and, its times of prosperity, it would seem impossible to fix a measuring rod by which damages in cases of this nature could be measured.

Defendants have cited many cases where excessive verdicts for the loss of a foot were given. Among them are: Cole v. St. Louis-San Francisco Ry. Co., 332 Mo. 999, 61 S.W.2d 344; Bassett v. Milwaukee Northern Ry. Co., 169 Wis. 152, 170 N.W. 944; Kurn v. Campbell, 188 Okl. 636, 112 P.2d 386; Otos v. Great Northern Ry. Co., 128 Minn. 283, 150 N.W. 922; Galveston etc. R. Co. v. Andrews, Tex.Civ.App., 291 S.W. 590; Grennon v. New Orleans Public Service, Inc., 10 La.App. 641, 120 So. 801; Atlantic Coast Line R. Co., v. Kinlaw, 117 Fla. 166, 157 So. 341; Wichita Falls etc. Co. v. Combs, Tex.Civ.App., 250 S.W. 714; Curran v. Union Stockyards Co., 111 Neb. 251, 196 N.W. 135; White v. Davis, 103 Cal.App. 531, 284 P. 1086; Reed v. Terminal R. Ass'n of St. Louis, Mo.Sup., 62 S.W.2d 747.

The trial court has already made a substantial deduction by required remittitur. In its order the court stated:

"In ordering a remitter herein the court has taken into consideration that there is presently a substantial decrease of purchasing power of the dollar.

"The plaintiff's medical expense, damage to truck, and loss of earnings for twenty-four months following date of injury add up to $ 9,282.96. The jurors had these figures before them in assessing damages at $ 56,000.00. If the jury considered this sum as special damages in arriving at its verdict, the general damages assessed would be $ 46,717.04. To bring the verdict in this case in line with verdicts rendered and sustained in similar cases, not only in this state but also in other jurisdictions, the court is of the opinion that the verdict is excessive in the amount of $ 9,717.04. If the verdict is reduced in this amount, after compensating plaintiff for his actual damages, it will pay him $ 1,000.00 a year during his life expectancy, 37 years, for pain and suffering and future loss of earnings."

In support of the view that the verdict is not excessive under present inflationary conditions we quote for the reasoning therein only from Armentrout v. Virginian Ry. Co., D. C., 72 F.Supp. 997, 1001:

"* * * They need not close their eyes to the economic facts of life. It is possible, of course, that values may cease to be affected by inflation of the currency. Economic conditions may conceivably cause the value of the dollar again to rise to the point where it stood before the World War II. On the other hand, there is no assurance that its value may not become less as time goes on. This possibility balances, if it does not outweight, the contrary forecast. * * *"

This case, however, was reversed in 4 Cir., 166 F.2d 400, but its reasoning is sound. For other cases where very substantial judgments have been...