Caylor v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 14 August 1962
• Docket Number: No. 42469,42469
• Citation: 190 Kan. 261,374 P.2d 53
• Parties: Vernon D. CAYLOR, Appellee, v. ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, and Willard E. Gentry, Appellants.
• Court: Kansas Supreme Court

Page 53

374 P.2d 53

190 Kan. 261

Vernon D. CAYLOR, Appellee, v. ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, and Willard E. Gentry, Appellants.

No. 42469.

Supreme Court of Kansas.

Aug. 14, 1962.

Rehearing Denied Oct. 5, 1962.

Syllabus by the Court.

1. Where counsel for the plaintiff in a damage action for personal injuries is permitted to use a mathematical formula, setting forth on a blackboard the claim of future pain and suffering and permanent disability on a per diem or other fixed basis, in his summation argument to a jury, it is held on appeal to be improper and constitute reversible error. When such argument is made prejudice is conclusively presumed as a matter of law and a new trial must be granted.

2. The decision in Caylor v. Atchison, T. & S. F. Ry. Co., 189 Kan. 210, 368 P.2d 281, insofar as it pertains to the mathematical formula argument is withdrawn, vacated and set aside.

W. E. Treadway, Topeka, argued the cause, and C. J. Putt, J. B. Reeves and William A. Walton, Topeka, were with him on the briefs, for appellants.

John A. Bausch, Topeka, argued the cause, and L. M. Ascough, E. Edward Johnson and Wayne T. Stratton, Topeka, were with him on the briefs, for appellee.

Harry W. Colmery, James E. Smith, Robert E. Russell, O. R. Stites, Jr., an Lawrence D. Munns, Topeka, John F. Eberhardt, C. H. Morris, John C. Frank, Henry V. Gott, Richard C. Hite, H. E. Jones, Donald R. Newkirk, William Tinker and Lawrence Weigand, Wichita, Charles S. Schnider and Marion C. Miller, Kansas City, Joe L. Henbest, Columbus, Don C. Smith, Dodge City, George Allred, Emporia, W. Luke Chapin, Medicine Lodge, Arthur C. Hodgson, Lyons, Tom Crossan, Independence, Kirke W. Dale, Arkansas City, H. G. Engleman, Salina, and D. B. Lang, Scott City, filed briefs amici curiae.

SCHROEDER, Justice.

This case involves trial errors in a damage action for personal injuries sustained by the plaintiff in an automobile accident.

The questions presented are (1) whether the trial court erred in its failure to declare a mistrial after the plaintiff (appellee) in his own testimony injected the subject of appellants' insurance, and in failing to admonish the jury by instruction or otherwise to disregard such testimony, and (2) whether the trial court erred in permitting the appellee's counsel, in closing argument, to display a chart itemizing damages for future pain and suffering and permanent disability on a mathematical formula basis.

The appeal was first heard in December, 1961, and on January 20, 1962, our opinion affirming the judgment of the lower court was filed. (Caylor v. Atchison, T. & S. F. Ry. Co., 189 Kan. 210, 368 P.2d 281.)

A rehearing was granted and the case was reargued at the June, 1962, session.

Upon further consideration of the case, the court is convinced that the former decision is incorrect as to the mathematical formula argument (question No. 2 above). As to that portion of the opinion filed it should be and is hereby withdrawn, vacated and set aside. The decision of the court on the insurance feature (question No. 1 above) and the opinion thereon is in all respects affirmed.

Reference is made to the former opinion for the facts and general discussion on the use of the 'per diem' argument to the jury concerning the allowance of damages for future pain and suffering and permanent disability. (189 Kan., pp. 215 to 221, 368 P.2d 281.) This has been referred to as the mathematical formula argument or 'formula technique.'

The most recent decisions from other jurisdictions on this point are also divided.

The Supreme Court of Illinois on March 23, 1962, in Caley v. Manicke, 24 Ill.2d 390, 182 N.E.2d 206, reversed the Appellate Division (Caley v. Manicke, 29 Ill.App.2d 323, 173 N.E.2d 209) holding the portions of a prepared chart reflecting a mathematical formula for pain and suffering to be improper. On the same date the Supreme Court of Illinois in Jensen v. Elgin, Joliet and Eastern Railway Co., 24 Ill.2d 383, 182 N.E.2d 211, on the authority of Caley v. Manicke, supra, held it to be reversible error for counsel to use a mathematical formula in his argument to the jury.

The Supreme Court of South Carolina on the 7th day of February, 1962, in Harper v. Bolton, 239 S.Ct. 541, 124 S.E.2d 54, 59, held it reversible error to permit counsel to endorse on a blackboard his own personal opinion as to the per diem value of pain and suffering in final argument to the jury. The court adopted the reasoning in Certified T.V. and Appliance Company v. Harrington, [1959] 201 Va. 109, 109 S.E.2d 126. In the opinion the South Carolina court said:

'In allowing counsel for the respondent to endorse on a blackboard his own opinion as to the per diem value of pain and suffering was to permit him to make an argument that had no foundation whatever in the evidence. Though wide latitude and freedom of counsel in arguments to the jury are and ought to be allowed, such arguments cannot be based on facts not in the record, or inferences based on or drawn from facts which are not even admissible in evidence.'

On January 24, 1962, the Appellate Court of Indiana in Evansville City Coach Lines, Inc. v. Atherton, Ind.App., 179 N.E.2d 293, held the mathematical formula argument to be proper. (See, also, Kindler etc. v. Edwards, [1956] 126 Ind.App. 261, 130 N.E.2d 491).

The Supreme Court of Montana on February 13, 1962, in Wyant v. Dunn, Mont., 368 P.2d 917, held a mathematical argument for damages for the loss of love, affection and companionship in a wrongful death case on a per diem basis should be left within the sound discretion of the trial court.

In Evening Star Newspaper Company v. Gray, [Mun.C.A., D.C.] 179 A.2d 377, it was held that the per diem argument and the use of a chart were permissible by plaintiff's counsel.

Actually, it serves no purpose to enumerate the decisions in the various jurisdictions to determine what may be the numerical weight of authority. The scales of justice are not tipped by numerical balances.

In this jurisdiction there is no valid objection to counsel, in argument, telling the jury what, under the evidence, counsel considers a fair compensation for the injuries received. It is customary for counsel in argument to suggest a total monetary award for pain and suffering. This, however, is far less misleading than the mathematical computation of the value of pain and suffering--the display in argument of a formula--in which time units of life multiplied by price of pain per unit equals value. In mathematical terms it is a supposition multiplied by a variable which equals an unknown.

The rationale of the supporters of the per diem argument is that the jury must arrive at a total monetary value of the plaintiff's pain and suffering, and since this is inexact, counsel should be allowed to suggest the parts which make up the whole for the guidance of the jury. The procedure starts with a supposition that the plaintiff will not only live to the expectancy shown on the mortality tables, but that the pain will prevail throughout life. Then follows an assumption that the pain may be valued in dollars per unit of life, be it the year, the month, the day, hour or minute. Next, that the value of each unit is equal--that is, the pain is constant, uniform and continuous. And presto, the mathematical magic and we arrive at the whole sum. Admitting the ingenuity, it is beyond credence that accuracy can be increased or the truth served by such alchemy. This is not supported by the weight of human experience. It is a clever syllogism from an erroneous premise. No credit whatever is given for the gradual elimination of pain, the accommodation to it and the distraction from it by the events, change in circumstances and by other unconnected illnesses and injuries to which in the normal course a person is subjected. And no credit is given for the variations in pain between different individuals or the impossibility of recognizing or of isolating fixed levels or plateaus of suffering.

The purpose of this technique is blatantly to achieve 'the more adequate award,' a synonym to all but the naive for 'the more than adequate award.'

The reasoning assigned by courts which disapprove the 'formula technique' in arguing damages to a jury has been summarized in the former opinion. (189 Kan., pp. 218 and 219, 368 P.2d 281.) It is incorporated herein by reference and adopted as sound.

Pain and suffering is recognized in this state as a material element of damages on which recovery may be based. Damages for pain and suffering are unliquidated and indeterminate in character, and the assessment of unliquidated damages must rest in the sound discretion of the jury. In Domann v. Pence, 183 Kan. 135, 325 P.2d 321, the subject was discussed in the following language:

'* * * Pain and suffering have no known dimensions, mathematical or financial. There is no exact relationship between money and physical or mental injury or suffering, and the various factors involved are not capable of proof in dollars and cents. For this very practical reason the only standard for evaluation is such amount as reasonable persons estimate to be fair compensation for the injuries suffered, and the law has entrusted the administration of this criterion to the impartial conscience and judgment of jurors, who may be expected to act reasonably, intelligently and in harmony with the evidence. * * *' (p. 141, 325 P.2d p. 325.)

In view of the above quoted language we think the discussion of the 'per diem' argument in Caley v. Manicke, supra, by the Supreme Court of Illinois is particularly illuminating. It was there said:

'* * * While the question is a close one, as evidenced by the divergence of opinion on the matter, we feel that such technique transcends the bounds of proper argument.

'Those courts that have allowed counsel to use a formula and figures in argument generally do so because they feel (1) that a jury's determination...