Baylor v. Tyrrell

• Decision Date: 20 November 1964
• Docket Number: No. 35737,35737
• Citation: 131 N.W.2d 393,177 Neb. 812
• Parties: F. B. BAYLOR, Appellee, v. Clement L. TYRRELL, Appellant.
• Court: Nebraska Supreme Court

Page 393

131 N.W.2d 393

177 Neb. 812

F. B. BAYLOR, Appellee, v. Clement L. TYRRELL, Appellant.

No. 35737.

Supreme Court of Nebraska.

Nov. 20, 1964.

Syllabus by the Court

1. The amount of damages for pain and suffering has no legal rule for its measure and rests largely in the sound discretion of the jury.

2. It is not error for counsel in final argument to the jury to suggest flat amounts of recover for different periods of pain, suffering, and disability, if such different periods of pain and suffering bear some real relation to differences demonstrated in the evidence.

3. The verdict of a jury in a personal injury case will not be set aside unless it is so clearly exorbitant as to indicate passion and prejudice or disregard of the evidence or controlling rules of law by the jury.

4. A material allegation in a pleading is one essential to the claim or defense which could not be strickent from the pleading without leaving it insufficient.

5. If an instruction is not sufficiently specific in some respect, it is the duty of the party to offer requests to supply an omission, and unless this is done, the judgment will not be reversed for such defects.

6. The instructions must be construed together as a whole.

7. Loss of earning capacity, as distinct from loss of wages, salary, or earnings, is a separate element of damage.

8. Loss of earnings is an item of special damage and must be specifically pleaded and proved.

9. Proof of impairment of earning capacity may be had under general allegations of injury and damage.

10. Proof of an actual loss of wages or earnings is not essential to recovery for loss of earning capacity.

11. Recovery for loss or diminution of the power to earn in the future is based upon such factors as the plaintiff's age, life expectancy, health, habits, occupation, talents, skill, experience, training, and industry.

12. Recovery for mental suffering or anxiety may be had provided the mental suffering or anxiety is a reasonably certain result or is reasonably apprehended as a result of the injuries sustained.

Healey & Healey, Harvey L. Goth, Lincoln, for appellant.

Baylor, Evnen, Baylor & Urbom, Lincoln, for appellee.

Heard before WHITE, C. J., CARTER, MESSMORE, YEAGER, SPENCER and BROWER, JJ., and DIERKS, District Judge.

WHITE, Chief Justice.

This is a personal injury suit growing out of a car-pedestrian accident on May 2, 1962, at the intersection of Twenty-seventh and Van Dorn Streets in Lincoln, Nebraska. From a jury verdict and judgment in the sum of $14,200, the defendant appeals.

The plaintiff, 77 years of age, was struck on his left side, knocked off his feet, turned over twice, came to rest about 7 or 8 feet in front of defendant's car, complained of pain in his left hip, was given a sedative at the scene, and was taken to the hospital by ambulance.

Hospitalization disclosed painful injuries to the knees, shoulder, and jaw, and a more severe serious injury in the fracture of the neck of the femur in the left hip. An operation was necessary the afternoon of the accident by which the head of the ball of the hip joint was manipulated into place and fastened by the use of screws. His pain was eased at times by opiates, but was quite general in nature and was aggravated by the necessary movements and therapy required to regain his ability to walk. After 19 days in the hospital, he was able to walk with two crutches.

In the 17-month period between hospitalization and the time of trial, the plaintiff suffered pain, used forearm and shoulder crutches, and a cane. His left leg became weak, gets tired, and causes a general fatigue. The use of a crutch or cane will be required permanently.

The mortality tables give plaintiff a life expectancy of 5 years. He has a permanent and increasing future disability. This consists of a shortened left leg, a limp, a restriction of leg and hip motion, and a progressive degenerative condition of the bone because at his age the bone lacks good circulation and powers of repair. The permanent disability was 20 to 25 percent at the time of trial, and will increase in the future. There is a general weakness and fatigue resulting from these conditions. The restriction of motion as to internal rotation of the hip is a condition that developed and then increased after about April 1963 and is indicative of progressive degenerative changes. Pain, in varying degrees, accompanies these conditions.

Plaintiff, at the time of the accident, was active in all phases of the practice of law. He lost 9 weeks from work while in the hospital and at home, and now can only work part of the time he devoted to the practice previously. The breadth of his activities in the practice has been narrowed.

The evidence shows that the plaintiff suffered considerable anxiety and anguish from the knowledge of the probabilities of degeneration of the hip bone, based on information given him by his doctor from time to time, including the advice that it could not be known for a year and a half after September 1963 whether an artificial hip bone might be necessary. Disregarding the detailed and voluminous testimony as to discomfort, pain, and subjective discomfort, the above resume outlines the plaintiff's injuries in the different categories referred to. They are largely undisputed and are all supported by the evidence.

The first and major contention the defendant makes is that prejudicial error arose from improper final argument to the jury as to damages. Plaintiff's counsel, in final argument, broke the evidence down into about six different areas. These were pain and suffering at the time of the accident, the 19-day period of hospitalization, the 17 months after hospitalization until the time of trial, the future disability and pain, mental suffering and anxiety, and loss of earning capacity. As in most cases of this type, the evidence logically broke down into these different items or areas and no question appears or could appear as to counsel's right to present and identify the damages separately in this fashion. The evidence clearly supports such an analysis. As to these different items or categories, plaintiff, in argument, suggested a flat amount for the jury to allow as to some of the above items. Brevity forbids quotation of the total argument. After summing up the plaintiff's experience and pain at the scene of the accident, counsel stated: 'You will have to use your judgment as I have had to use mine, and I will suppose that if you ascribe, for instance, oh, $2500 for that simple experience alone you wouldn't be out-of-bounds. Try to relive it. It seems grossly low, but that is a suggestion.'

After summing up the 19-day experience in the hospital, counsel stated: 'For 19 days he goes through this before he is discharged from the hospital. What of that experience? The reasonable measure of value for those 19 days of lying there and going through this recuperative process, seems to me, that if I suggested $1900 that would be very low. $3800 might be more realistic for 19 days, for this hospitalization for 19 days.'

Either, orally, or by placing a figure on a blackboard, plaintiff's counsel ascribed a flat suggested amount for the other items. Counsel also told the jury: 'Your job is to try to compensate Mr. Baylor and make him whole. The words of the instructions will be, 'To make him whole.' Then figure out what the value of the money would be in placing Mr. Baylor back in the same condition as he was before. I understand it is impossible to do that, but you can use your own best judgment; and whatever I say in this respect you are to understand, please, my inferences will be my thinking and not be yours. They are values which I ascribe to things and will give to you as guides. I think I can't desert you on this and say, 'Here, it is your problem, it is too hard for me, take it away.' I think I would not be doing my job if I did not try to make some analysis, at least, of the individual items of damages that have occurred.' (Emphasis supplied.)

Defendant, citing and relying mainly on Boop v. Baltimore & Ohio R. R. Co., 118 Ohio App. 171, 193 N.E.2d 714, an intermediate Ohio appellate court decision, asserts that it is prejudicial error for counsel to break the damage picture into fragments and then apply to each fragment a mathematical formula by multiplying fixed amounts for small periods of time in order to arrive at an amount for the entire period of expectancy. This is generally characterized in the cases as a 'mathematical formula' argument. There is a diversity of opinion in the cases as to the right of counsel to use such an argument. It appears that the weight of authority supports the propriety of such an argument. Bowers v. Pennsylvania R. R. Co. (D.C.1960), 182 F.Supp. 756, affirmed, 3 Cir., 281 F.2d 953; Haycock v. Christie (1957), 101 U.S.App.D.C. 409, 249 F.2d 501; Imperial Oil, Limited v. Drlik (6 Cir. 1956), 234 F.2d 4, certiorari denied 352 U.S. 941, 77 S.Ct. 261, 1 L.Ed.2d 236; Clark v. Hudson (1957), 265 Ala. 630, 93 So.2d 138; McLaney v. Turner (1958), 267 Ala. 588, 104 So.2d 315; Vanlandingham v. Gartman (1963), 236 Ark. 504, 367 S.W.2d 111; Newbury v. Vogel (1963) (Colo.), 379 P.2d 811; Evening Star Newspaper Co. v. Gray (1962), 179 A.2d 377; Ratner v. Arrington (1959) (Fla.App.), 111 So.2d 82; Corkery v. Greenberg (1962), 253 Iowa 846, 114 N.W.2d 327; Aetna Oil Co. v. Metcalf (1944), 298 Ky. 706, 183 S.W.2d 637; Louisville & Nashville Ry. Co. v. Mattingly (1960) (Ky.), 339 S.W.2d 155; Little v. Hughes (1961) (La.App.), 136 So.2d 448; Eastern Shore Public Service Co. v. Corbett (1962), 227 Md. 411, 177 A.2d 701; Yates v. Wenk (1961), 363 Mich. 311, 109 N.W.2d 828; Flaherty v. Minneapolis & St. Louis Ry. Co. (1958), 251 Minn. 345, 87 N.W.2d 633; Boutang v. Twin City Motor Bus Co. (1956), 248 Minn. 240, 80 N.W.2d 30; Arnold v. Ellis (1957), 231 Miss. 757, 97 So.2d 744; Four-County Elec. P. Assn. v. Clardy (1954), 221 Miss. 403, 73...