Chicago & N.W. Ry. Co. v. Candler

• Decision Date: 12 October 1922
• Docket Number: 6005.
• Citation: 283 F. 881
• Parties: CHICAGO & N.W. RY. CO. v. CANDLER.
• Court: U.S. Court of Appeals — Eighth Circuit

283 F. 881

CHICAGO & N.W. RY. CO. v. CANDLER.

No. 6005.

United States Court of Appeals, Eighth Circuit.

October 12, 1922

Wymer Dressler, of Omaha, Neb. (Robert D. Neely and Paul S Topping, both of Omaha, Neb., on the brief), for plaintiff in error.

J. J Harrington and M. F. Harrington, both of O'Neill, Neb for defendant in error.

Before CARLAND and KENYON, Circuit Judges, and JOHNSON, District judge.

JOHNSON District Judge.

This was a suit to recover damages for personal injuries. Plaintiff had judgment, and defendant has brought the cause to this court for review.

The defendant requested the trial court to give the following instruction:

'If you should conclude to allow plaintiff damages on account of future pain and inconvenience if any, it will be your duty, after determining the amount of plaintiff's damages for such future pain and inconvenience, to reduce said amount to its present worth and the present worth or value only will be represented in your verdict.'

The court refused to give the instruction; the defendant excepted, and has assigned the ruling as error. Counsel for plaintiff in error in their brief state their contention as follows:

'A common carrier of passengers for hire in a suit for personal injuries to a passenger is entitled, upon proper request, as a legal right, to have the jury instructed that where damages are to be allowed for future pain and suffering and future loss of earning capacity, such damages must be reduced to their present worth or value.'

And in support of their contention they cite the following cases: Vicksburg & M.R. Co. v. Putnam, 118 U.S. 545, 7 Sup.Ct. 1, 30 L.Ed. 257; Pierce v. Tennessee Coal, etc., R. Co., 173 U.S. 1, 19 Sup.Ct. 335, 43 L.Ed. 591; Chesapeake & Ohio R.R. v. Kelly, 241 U.S. 485, 36 Sup.Ct. 630, 60 L.Ed. 1117, L.R.A. 1917F, 367; Chesapeake & Ohio R.R. Co. v. Gainey, 241 U.S. 494, 36 Sup.Ct. 633, 60 L.Ed. 1124; Louisville & Nashville R. Co. v. Holloway, 246 U.S. 525, 38 Sup.Ct. 379, 62 L.Ed. 867.

Ches. & Ohio Ry. Co. v. Kelly was an action by the administratrix of Matt Kelly, deceased, to recover damages for the benefit of the widow and minor children of decedent because of his death while employed by the railway company. Only the future earnings of the deceased were involved in the case, respecting which the Supreme Court said:

'So far as a verdict is based upon the deprivation of future benefits, it will afford more than compensation if it be made up by aggregating the benefits without taking account of the earning power of the money that is presently to be awarded. It is self-evident that a given sum of money in hand is worth more than the like sum of money payable in the future.'

Ches. & Ohio Ry. Co. v. Gainey was also a death action. It was decided the same day the Kelly Case was decided, and adopts the views expressed in the Kelly Case.

Louis. & Nash. R.R. Co. v. Holloway was a death action for the benefit of the widow, in which the Supreme Court reaffirms the present value rule of the Kelly Case.

Pierce v. Tennessee Coal & R. Co. was an action for breach of contract for future employment. It is cited in the Kelly Case. The present value rule announced in the Kelly Case is foreshadowed in the opinion in the Pierce Case.

Vicksburg, etc., R.R. Co. v. Putnam, was an action for personal injuries. Referring to it the court in the Kelly Case said:

'The judgment was reversed, not because of the recognition of the rule of present values, but because of the conclusive force that was given by the trial judge to the life and annuity tables. In the course of the opinion the court, by Mr. Justice Gray, said (page 554) that the compensation should include 'a fair recompense for the loss of what he would otherwise have earned in his trade or profession, and has been deprived of the capacity for earning by the wrongful act of the defendant. * * * In order to assist the jury in making such an estimate, standard life and annuity tables, showing at any age the probable duration of life, and the present value of a life annuity, are competent evidence. * * * But it has never been held that the rules to be derived from such tables or computations must be the absolute guides of the judgment and the conscience of the jury.''

It will be noted that in all the cases cited by plaintiff in error only the question of future earnings was involved. While counsel in their brief claim that plaintiff in error was entitled 'to have the jury instructed that where damages are to be allowed for future pain and suffering and future loss of earning capacity, such damages must be reduced to their present worth or value,' they, as a matter of fact, only requested the court to give an instruction covering 'future pain and inconvenience.' The court instructed the jury:

'If she (defendant in error) has shown you by a fair preponderance of the evidence that the injury was of such character as to cause her loss of earning power then the amount awarded her should be sufficient to reasonably compensate her for any damage she has sustained in the past and which can be, with fair degree of certainty, that she will sustain in the future, and also an amount to reasonably and fairly and fully compensate her for any pain or suffering which was directly and actually caused by the accident to her while she was a passenger, nothing

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