Clissold v. St. Louis-S. F. Ry. Co., LOUIS-SAN

• Decision Date: 06 July 1979
• Docket Number: LOUIS-SAN,No. 77-1132,77-1132
• Citation: 600 F.2d 35
• Parties: Wallace C. CLISSOLD and Ingebord Clissold, Plaintiffs-Appellees, v. ST.FRANCISCO RAILWAY COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 35

600 F.2d 35

Wallace C. CLISSOLD and Ingebord Clissold, Plaintiffs-Appellees, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Defendant-Appellant.

No. 77-1132.

United States Court of Appeals Sixth Circuit.

Argued June 19, 1978.

Decided June 7, 1979.

Rehearing Denied July 6, 1979.

Gordon B. Wheeler, Wheeler, Upham, Bryant & Uhl, Grand Rapids, Mich., Carson C. Grunewald, Bodman, Longley, Bogle & Dahling, George G. Kemsley, Detroit, Mich., for defendant-appellant.

William D. Buchanan, Chollete, Perkins & Buchanan, Grand Rapids, Mich., Francis H. Monek, Chicago, Ill., for plaintiffs-appellees.

Before WEICK and MERRITT, Circuit Judges, and CECIL, Senior Circuit Judge.

WEICK, Circuit Judge.

The defendant has appealed from a judgment in favor of the plaintiffs in this personal injury diversity action governed by Michigan law.

The complaint was filed in the District Court on November 20, 1972. However, the case was not reached for trial until October 6, 1976. The reason for this long delay does not appear to be attributable to any activities of the parties, as the docket entries show only the filing of the complaint and the answer.

The case was tried for three days by the District Court without a jury. At the end of the second day the Court announced from the bench its opinion on the issue of liability, deciding in favor of the plaintiffs. At the end of the third day the District Court announced from the bench its opinion on damages and awarded to Wallace C. Clissold $500,482.83, and to his wife, Ingebord Clissold, $30,100. The District Judge indicated that he would write an opinion later, which was filed and judgment entered on October 22, 1976.

The record on appeal was not filed in this Court until February 17, 1977. We mention these dates only because the plaintiff was deprived of money to which he was justly entitled, and the defendant, who was not responsible for the delay, is being charged with interest from the date of the filing of the complaint on November 20, 1972. We have considered these facts in reaching our decision that it is not necessary to remand for further findings.

In this appeal the defendant does not dispute the District Court's finding of liability, but instead, it claims that there are errors in six of the nine specific items of damages awarded below. In our opinion as hereinafter pointed out, the awards in certain respects were grossly excessive, were speculative, and were clearly erroneous. Accordingly, we will modify the judgment of the District Court, and as modified, we affirm. See 28 U.S.C. § 2106.

Wallace Clissold was a long-time employee of the Kellogg Company when on August 31, 1971 a 1500-pound steel bulkhead door in a railway boxcar owned by the defendant, fell on him. He suffered a broken nose, a broken ankle, and a broken foot. Clissold remained hospitalized for one month, and was totally disabled for another five months. He returned to work in March, 1972, and was eventually returned to the foreman's job which he held prior to the accident. He was unable, however, to perform all of the duties that he had previously been able to accomplish, and he was provided with a three-wheel cart which improved his mobility on the job.

Two years after the accident surgery was again required on Clissold's feet. One and one-half years later he was hospitalized for treatment of an ulcer which, it was contended, resulted from the injury. Medical evidence showed that Clissold is permanently partially disabled. It is also possible that he may develop arthritis in his right foot The District Court made the following specific awards:

and he is not expected to regain full mobility. Based on this evidence the District Court concluded that Clissold would not be able to continue his foreman's job, and that the most he could expect was a staff job at reduced pay and overtime.

Wallace C. Clissold--

                  1.  Pain and suffering first six (6)
                        months                                $ 25,000.00
                  2.  Pain and suffering 4 1/2 years to date
                        at $5,000 per year                      22,500.00
                  3.  Future pain and suffering--Life
                        expectancy 29.54 years at $5,000
                        per year $147,700.00
                          Present Worth                         68,390.00
                  4.  Wage loss to date                         11,556.00
                  5.  Overtime loss to date                     13,142.00
                  6.  Present worth of future overtime
                        loss                                   212,341.00
                  7.  Present worth of loss of future wage
                        earning capacity                       143,684.83
                  8.  Medical and Hospital                       3,869.00
                                                              -----------
                                                              $500,482.83
                  9.  Ingebord Clissold--Loss of
                        Consortium                            $ 30,100.00
                

In this appeal the defendant does not contest items 1, 4, and 8:

                (1)   Pain and suffering for first six months  $25,000
                (4)   Wage loss prior to trial                  11,556
                (8)   Medical and hospital costs                 3,869
                Pain and Suffering
                

The defendant challenges as excessive the awards for pain and suffering for the period from six months following the accident until trial ($22,500), and for future pain and suffering ($68,390). Under Michigan law damages are excessive and unlawful when they shock the judicial conscience. Yates v. Wenk, 363 Mich. 311, 319, 109 N.W.2d 828, 831 (1961).

For pain and suffering for the period of four and one-half years prior to trial, the District Court awarded $5,000 per year. During this time Wallace Clissold was hospitalized for additional surgery on his feet and for a bleeding ulcer; evidence further showed that he suffered considerable pain and swelling of the ankles, and reduced mobility. In view of these facts we do not find this award shocking. In addition, the Michigan courts have approved the use of the per diem formula, a variation of which was used by the District Court here. See Yates, supra; Pippen v. Denison Div. Abex Corp., 66 Mich.App. 664, 239 N.W.2d 704 (1976).

As to future pain and suffering, we find the award grossly excessive. The District Court based its award on the same rate of $5,000 per annum as was used to arrive at the award for pretrial pain and suffering. This award was based on the fact that Clissold will likely continue to suffer pain and loss of mobility for the rest of his life. It was not shown, however, that he will necessarily suffer the same level of pain, or that he will require additional hospitalization and surgery in the future as he has in the past. At most there is a possibility that Clissold will develop traumatic arthritis at some future time as a result of the accident. It has not yet happened and it is by no means a reasonable medical certainty. On these facts the Court acted erroneously in awarding the same annual amount for pain and suffering in the future as allowed for pain and suffering during the difficult period of the first few years following the accident. ¹

The District Court made one additional error with respect to its award for pain and suffering. Under Michigan law all future damages must be reduced to their value as of the date of the complaint. Bruno v. Detroit Inst. of Technology, 51 Mich.App. 593, 599-600 & n. 1, 215 N.W.2d 745, 749 & n. 1 (1974); See Currie v. Fiting, 375 Mich. 440, 453-54, 134 N.W.2d 611, 616 (1965) (plurality opinion). Although the Bruno decision involved the breach of an employment contract, and not tort liability, the Court expressed the rule broadly. Additionally, we believe that this is the correct approach in the present case because the Applying these rules, and noting the other error of the District Court, we believe that the maximum permissible award for pain and suffering under the facts of this case (including the award for the first six months) is $70,445. This accounts for the necessary discounting to the date of the filing of the complaint, as well as interest, up to the time of the entry of judgment by this Court.

Michigan interest-on-judgment statute, M.C.L.A. § 600.6013, M.S.A. § 27A.6013 ², mandates that interest run from the date of the filing of the complaint. ³ The application of the Bruno rule thus prevents unwarranted double recoveries.

Lost Wages

The defendant does not contest the award for the past wages, but complains only about the award for the loss of future earning capacity. In arriving at its award of $143,684.83 (valued as of the date of judgment), the District Court compared Clissold's future earning capacity as a foreman, his old job, with that of a staff employee, the job to which the Court assumed Clissold would be transferred but actually had not been so transferred. The Court assumed that Clissold's history of receiving 7.44% Annual wage increases which he had received since the accident, would continue in the future, and that as a staff employee Clissold would be paid 25% Less than he would be paid as a foreman.

Under Michigan law damages for future consequences of an injury are recoverable only where there is "such a degree of probability of such consequences as to amount to (a) reasonable certainty that they will result . . . ." Kellom v. City of Ecorse, 329 Mich. 303, 308, 45 N.W.2d 293, 295 (1951), (quoting Brininstool v. Michigan United Rys., 157 Mich. 172, 180, 121 N.W. 728, 731 (1909); Accord, Gilson v. Bronkhorst, 353 Mich. 148, 154 n. *, 90 N.W.2d 701, 705 n. 2 (1958). We believe that the District Court's award of lost future wages was in certain aspects based on undue speculation so that the loss was not in all respects "a reasonable certainty."

The primary basis for the District Court's award was its conclusion that Clissold would be unable to continue his foreman's job. Yet at the time of trial Clissold was in fact serving in the same foreman's position that he held prior to the accident. It is true that Kellogg had made certain accommodations in the job requirements to...