Franco v. Fujimoto

• Decision Date: 24 March 1964
• Docket Number: No. 4271,4271
• Parties: Miriam B. FRANCO v. Franklin FUJIMOTO.
• Court: Hawaii Supreme Court

Page 740

390 P.2d 740

47 Haw. 408

Miriam B. FRANCO v. Franklin FUJIMOTO.

No. 4271.

Supreme Court of Hawai'i.

March 24, 1964.

Syllabus by the Court

1. There is no exact or mathematical rule by which damages for pain and suffering or mental anguish can be determined.

2. Test for determining damages for physical pain and suffering or mental anguish is what the jury, taking into account the nature, intensity and extent thereof as disclosed by the evidence, considers will reasonably compensate the plaintiff for the pain and suffering or anguish.

3. Counsel may not, in arguing to the jury on damages for physical pain and suffering or mental anguish, resort to or urge the jury to use a mathematical formula for calculating such damages on the basis of a dollar amount per hour, day or other time unit for the pain and suffering or anguish.

4. Counsel's use of mathematical formulas in arguing issue of damages for physical pain and suffering and for mental anguish based on per hour and per diem amounts was prejudicial error.

5. It is incumbent upon an injured person to submit to reasonable treatment and to follow the advice of a competent physician. No damages will be allowed for prolongation of pain, suffering or anguish which might have been prevented by submitting to treatment to which a reasonably prudent person would have submitted to improve his condition.

6. Even though there was evidence that plaintiff's disfiguring scar might have been benefited by plastic surgery, plaintiff may not be held to have acted unreasonably in not having had such surgery performed in the absence of proof of the nature, cost and inconvenience of the operation.

7. A factor to be considered in the determination of whether plaintiff should have submitted to plastic surgery in mitigation of damages from a scar is whether or not such an operation had been recommended by a medical expert.

8. Where defendant relies on matter in mitigation of damages he has the burden of proving the facts which would operate to bring the mitigation into effect.

9. When the evidence reveals that plaintiff in a personal injury action, though suffering pain, returned to work a few weeks after she was injured and did not thereafter lose any time from work and where there was no evidence sufficient to support a finding that pain would be sustained in the future, it was error to include in an instruction, as an item for the jury's consideration in determination of damages, impairment of ability to pursue her calling or business.

10. Only a medical expert is qualified to express an opinion as to whether pain will continue in the future, and, if so, for how long a period it will continue.

11. Where injury is subjective in character and of such nature that a layman cannot with reasonable certainty know whether or not there will be future pain and suffering, the introduction of competent expert opinion testimony bearing on permanency of such injury or likelihood that the injured person will endure future pain and suffering is required before recovery therefor may be allowed.

12. Although plaintiff testified that she was still suffering from injuries to her shoulder and neck inflicted more than two years before the trial, it was error, in the absence of medical testimony to substantiate the permanency of the injuries, to instruct the jury it might take into consideration future pain and suffering in determining damages.

13. The use of mortality tables in personal injury actions is limited to injuries of a permanent character.

14. Where plaintiff was disfigured by a permanent scar the jury could properly be instructed that plaintiff's life expectancy had some bearing in determining damages attributable to the scar.

15. There is no fixed rule applicable to all cases by which it can be determined just when the issue of unavoidable accident is presented. Whether or not an instruction on unavoidable accident should be given depends upon the facts of each particular case and to a large extent rests in the discretion of the trial court.

William L. Fleming, Honolulu (Smith, Wild, Beebe & Cades, Honolulu, of counsel), for appellant.

Henry H. Shigekane, Honolulu (Walter G. Chuck, Honolulu, of counsel), for appellee.

Before TSUKIYAMA, C. J., and CASSIDY, WIRTZ, LEWIS and MIZUHA, JJ.

CASSIDY, Justice.

On February 12, 1959, the plaintiff, Miriam B. Franco, was injured in a collision occurring on Kapiolani Boulevard, in Honolulu, between an automobile driven by the defendant, Franklin Fujimoto, and one driven by Harry Y. Hirahara. Plaintiff was a passenger in the latter's car. The impact caused plaintiff's head to strike the windshield of the car with sufficient force to break it. Her face was cut by splinters of glass and she suffered shock. She was taken by ambulance to the Queen's Hospital Emergency Division where she received medication, the glass was removed from her face and eyes, and a laceration on her forehead was sutured with several stitches. She was discharged from the hospital about three hours after entering it. She remained at home under the care of her own physician, Dr. Charlotte M. Florine, who told her on February 23, 1959, that she could go back to work, which she did the next day.

Plaintiff testified that she had not been able to sleep the night after the accident because of pain in her head, back and shoulders; that for two weeks thereafter she had pain in the shoulder area of her back and in her neck for about 10 to 14 hours each day; that the pain occurred for 30 minutes or an hour each day for the ensuing six months; and that between the end of the six-month period and the trial in June, 1961, it occurred at least two or three times a week.

The laceration on plaintiff's forehead left a scar 1 1/8 inches long. It varied in width from 1/8 inch to about 1/32 inch.

Loss of wages for the 12 days plaintiff was away from work was established at $107.52. Reasonable cost of medical expenses was stipulated at $56.00. The jury returned a verdict in plaintiff's favor allowing $163.52 as special damages, and $7,500.00 as general damages.

Defendant's appeal from the judgment on the verdict presents ten specifications of error. We will first consider Specifications No. 8 and No. 9, which raise an important question on the permissible scope of argument on damages in personal injury actions.

In argument to the jury plaintiff's counsel illustrated and urged the computation of damages for pain and suffering from the date of injury to the date of trial on a mathematical formula basis. Following the three-phase pattern of suffering testified to by the plaintiff, counsel, using a chart, added the hours plaintiff said she had suffered in each of the three separate periods to find a total of 1,255 hours and multiplied by $5.00 an hour to obtain (by his computation) $7,275.00 as the suggested amount of damages for past pain and suffering. In selecting the $5.00 per hour rate counsel urged that that factor could be arrived at by considering plaintiff's rate of pay. He argued:

'Now, again, Ladies and Gentlemen, after we arrive at the number of hours, how can we convert that into money? Well, most of us have to work at so much an hour. I suggest to you that we apply the same basis.'

('Objection made and overruled.)

'We now have a total of 1,255 hours for her past aches and pains and injuries and mental suffering and physical pain. I started to say before the objection was made that we are familiar with a situation like this. Most of us work for an hourly wage, or it can be converted to an hourly wage.

'The Plaintiff herself works for $2.25, I think she said. When it was time and a half, she didn't know what time and a half amounted to. She works at a job which she finds pleasing. It is pleasing enough so that she forgets about the neck ache during the time that she is working. She gets $2.25 an hour for that. What is something as unpleasant as this worth? I suggest to you it is worth at least double. And if it is worth $5.00 an hour, then for what she had had in the past, she should be getting around $7,275, plus whatever valuation you put on for the initial impact.'

Plaintiff's counsel also suggested and asked for a specific lump-sum figure for the initial pain and suffering at the time of the injury and a lump-sum amount for future pain and suffering. He also resorted to the use of the mathematical formula in arguing damages attributable to future mental suffering from the scar. On this last item of damages he took plaintiff's life expectancy of 39 years, or a total of 14,235 days, and suggested that a reasonable allowance would be at the rate of $1.00 or $2.00 per day. The portions of the argument suggesting the use of the mathematical formula to determine damages for past pain and suffering and for future mental anguish caused by the scar were made over defendant's objection. No objection was interposed to counsel's suggesting a specific lump sum for the initial pain and suffering or for a lump-sum amount for future pain and suffering.

The argument objected to clearly runs afoul of the now well-known 'Botta Rule.' We are thus directly faced with the necessity of taking our stand in respect to that rule for this jurisdiction. As plaintiff states, 'Three avenues are available to the court: (1) accept the rule in Botta v. Brunner, 26 N.J. 82, 138 A.2d 713, 60 A.L.R.2d 1331 (1958), (2) reject the rule in the Botta case, or (3) leave the matter in the discretion of the trial court.'

In Botta the New Jersey Supreme Court held that the trial court did not commit error in refusing to permit plaintiff's counsel, in argument to the jury in a personal injury case, to suggest a mathematical formula for the computation of damages for pain and suffering. The court concluded that the mathematical or per diem formula argument constituted 'an unwarranted intrusion into the domain of the jury's and was not permissible. The reasoning of the court in reaching...