Caldwell v. Southern Pac. Co.

• Decision Date: 23 May 1947
• Docket Number: No. 547.,547.
• Citation: 71 F. Supp. 955
• Court: U.S. District Court — Southern District of California
• Parties: CALDWELL v. SOUTHERN PAC. CO.

71 F. Supp. 955

CALDWELL v. SOUTHERN PAC. CO.

No. 547.

District Court, S. D. California, Northern Division.

May 23, 1947.

Hildebrand, Bills & McLeod, James A. Myers and Clifton Hildebrand, all of Oakland, Cal., and Martin Thuesen, of Fresno, Cal., for plaintiff.

Johnson, Ricksen & Johnson, and Marshall Ricksen, all of Oakland, Cal., and Walter H. Stammer, of Fresno, Cal., for defendant.

YANKWICH, District Judge.

On September 6, 1946, the plaintiff, a switchman in the employ of the defendant, was injured at Bakersfield, California, suffering the loss of both legs. His complaint, filed on December 5, 1946, sought to recover the sum of $250,000. It contained two claims, one under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., which alleged negligence; the other, under the Federal Boiler Inspection Act, 45 U.S.C.A. § 22 et seq., which alleged the same facts as a violation of that Act. After a trial lasting five days, a jury, on April 25, 1947, returned a verdict for the plaintiff, in the sum of $40,150. The plaintiff has moved for a new trial.

While the motion is based on all the usual grounds allowable under the law, actually the only point made turns upon the rejection of the testimony of an actuary as to the present value of a future sum, which, it is claimed, resulted in an inadequate award.

Because it is contended that this was an offer to prove this fact according to standard annuity tables, it is well to set forth a portion of the colloquy, during which the ruling was made:

"Mr. Myers: May I state my position, Your Honor, so you will understand what I have in mind?

"The Court: Yes.

"Mr. Myers: Following along the line suggested by Your Honor, I think counsel will agree at least that the evidence will show some loss of future earning capacity.

"The Court: That is right.

"Mr. Myers: Standing up in front of Your Honor and the Jury, saying this man, in all probability, has a life expectancy of so many years, that he is going to lose so much money a month for that period or that length of time, and to argue for that sum, would be very unfair from the standpoint of the defendant. You have got to allow for the earning power of money. That is why this man is on the stand, to tell you at one per cent, two per cent, three per cent, four per cent, or how much it would take to pay a dollar a month over a period of 36 years, until a sum which would pay a dollar a month over a period of 36 years, is deposited in a bank, would be exhausted. It is not a matter of saying how much his life is worth. It is a matter of saying what is the present value of a future sum. There are cases on it, Your Honor.

"The Court: Not that would be binding. It is a speculative method, not permissible under the state law or the federal law.

"Mr. Myers: May I ask Your Honor if that is any more speculative than to say a man will lose so much money a month over a period of years, and then take the whole 36 years life expectancy, in accordance with the American Experience Table, and multiply that and say he is going to lose that much money? You are not allowing for the earning power of money. It isn't fair.

"The Court: I don't think that is the kind of testimony that should be allowed. It has never been allowed in the federal courts. Under the total and permanent disability statutes — and I have tried nearly a hundred such cases — we have very liberal rules, and there we have allowed an expert to testify whether a man could work, or whether it would hurt him to work. Under the Stephens and Lumbra cases, even a doctor could not give an opinion as to whether a man is totally and permanently disabled. That is for the Jury to decide. All you are allowed to put before a Jury are facts.

"I give instructions to the effect that in determining general damages, the Jury has a right to take into consideration the nature and permanency of the injury, and I also instruct them that they have a right to consider possible losses arising therefrom. That is all the Jury should have. Not actuarial speculation. You might ask what my life is worth. Everybody knows what salary I get because it is fixed by the Congress. If something should happen to me — my age is 58 — I am not ashamed of it — it would not be a question of determining what my life is worth. The question would be my earning power.

"Mr. Myers: I don't want to be arguing with Your Honor.

"The Court: Go right ahead.

"Mr. Myers: But it seems to me it is a more scientific way of figuring how much money it is going to take to pay an annuity over the period of a man's life expectancy to know what the actuarial figures are, if we don't know them than to argue in our opinion this man is going to lose so much money every month for the next thirty-six years, and that amounts to so much money.

"The Court: That is a question to argue to the Jury. I don't want an actuary to give the Jury that information. These jurors are intelligent. You have business men, insurance men, and men with all sorts of experience. On the basis of the facts you have put in, they will listen to your arguments. I am not going to stop your arguments. You don't have to have an actuary to reduce this to a mathematical formula, because the jurors are competent to do that themselves. I can point to one or two persons on the Jury who would be wizards in figuring out deductions from the facts.

"Mr. Myers. In other words, you prefer to have the Jury figure the present value of future sums?

"The Court: Yes. That is a matter of argument. You can present a legitimate argument, under the instructions I give, rather than having an actuary's testimony.

"Mr. Myers: That is agreeable." (Emphasis added)

In his opening argument to the jury, counsel for the plaintiff gave his ideas on the measure of damages for lost wages on the basis of the actual earnings. An excerpt before me shows that, on the loss of wages alone, he argued to the jury for an award as high as $62,546. I quote from the record:

"So, then, if you would take $2200.00 a year for 36 years, and multiply it, you would find that would amount to so much money. Some of you, I think, have had experience in figuring annuities. And you would say what is the earning power of money now that you get on a savings account — is it one per cent? Is it two per cent? Maybe you can get two per cent. I don't know what it may be, but if he can get two per cent, you allow him two per cent on so much money that will pay Mr. Caldwell on this element of $200.00 per month for his life expectancy of 36 years.

"We would not take the full amount, because it would not be fair, but we will reduce it by allowing two per cent for the earning power of that money, and I think you will find on that basis — I am not taking the lowest amount. I am not taking the highest amount. I am trying to take a middle amount — and if we allow $200 per month at two per cent, we would have to figure that we would have $62,546.00 in the bank to pay out on that element of damage.

"So, roughly speaking, there is that element of loss of future earning capacity of 65 — 62 — 63 — whatever you want to figure it — thousand dollars, substantially, in addition to his loss of wages up to the present time of $2250.00. Then, on top of that, you would want to assess him a substantial sum that would compensate him for the elements of damage in pain and suffering, suffered up to this present time, and also additional pain and suffering to be endured by him in the future. And an amount that will compensate him not only for that, but also an amount that will compensate him for wearing artificial limbs, not being able to engage in the activities of other normal people of his age, and in assessing that amount of damages, that, too, is left up to your discretion. I feel that a like amount would be fair for pain and suffering.

"I feel that this man should be compensated for having to go through life with the loss of his feet, because of what happened to him on September 6, 1946, and I am sure that when this case is submitted to you folks, on this Jury, and you go to your jury room, and figure out how much it is going to take to properly compensate Mr. Caldwell, you will find a verdict in his favor for an amount within the amount alleged in the complaint. It is alleged in the complaint he had suffered damages to the extent of $250,000." (Emphasis added)

It is, therefore, evident that in this, as in his closing argument, to the jury, without objection or interruption, counsel for the plaintiff indulged in speculation to his heart's content, and placed before the jury, by means of a blackboard, figures which would warrant a verdict of $250,000. And he must have had in mind the fact that he could so argue when he accepted my ruling and said that he was "satisfied."

The instructions were not objected to by either party. In addition to general instructions as to the province of the jury in assessing whatever amount they deemed reasonable as general damages suffered on account of the injury and its permanency, I gave the following instruction:

"According to the American Experience Table of Mortality, the expectancy of one aged twenty eight years is 36.73 years. This fact, of which the Court take judicial notice, is now in evidence to be considered by you in arriving at the amount of damages, if you find that plaintiff is entitled to a verdict."

I advert to the fact that, contrary to the usual California practice, and the implication of Rule 9(g), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, which requires that special and general damages be pleaded separately — the complaint grouped together special and general damages. This type of pleading, which seems to prevail among attorneys in the San Francisco Bay Area, prevents the Court from drawing the line between general and special damages — such as loss of wages, cost of hospitalization, and the like — which, as hornbrook law tells us, must be...