Halloran v. New England Telephone & Telegraph Co.

• Court: Vermont Supreme Court
• Writing for the Court: POWERS
• Citation: Halloran v. New England Telephone & Telegraph Co., 95 Vt. 273, 115 A. 143 (Vt. 1921)
• Decision Date: 04 October 1921
• Parties: CATHERINE HALLORAN v. NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY

115 A. 143

95 Vt. 273

CATHERINE HALLORAN v. NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY

Supreme Court of Vermont

October 4, 1921

February Term, 1921.

ACTION OF TORT for negligence. Plea, the general issue. Trial by jury at the March Term, 1920, Washington County, Chase, J presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

Shields & Conant for the defendant.

Theriault & Hunt for the plaintiff.

Present WATSON, C. J., POWERS, TAYLOR, MILES and SLACK, JJ.

OPINION

POWERS

The plaintiff secured a verdict in an action predicated upon the defendant's negligence, and the latter seeks a reversal of the judgment rendered thereon. Only three of the exceptions saved at the trial are briefed by the defendant, and these only are considered.

1. The plaintiff's evidence tended to show that at and before the time of the accident, she was suffering from a malignant disease of a private nature, which required a prompt surgical operation of a fatal result was to be averted; that the accident had resulted in a serious and incurable organic disease of the heart, which precluded the operation referred to; that through her physician, she learned these facts; and that she suffered much mental anxiety and distress on account of the same. The defendant excepted to the admission of the evidence tending to show such mental anguish, and to its being allowed as an element of the plaintiff's damages.

As we have seen, the physical condition which required an operation existed at the time of the accident and was not caused by it; but the physical condition which made it impossible to perform the operation was a direct result of the accident. The mental distress which the plaintiff was allowed to show was not on account of the doctor's disclosure of her fatal malady, but from the knowledge that the condition of her heart would not admit of an operation which would otherwise be an available cure. This anxiety she would have been free from but for the accident. It was, then, a natural and proximate result of the physical injury sustained through the defendant's negligence, and a proper element of recoverable damages. Rogers v. Bigelow, 90 Vt. 41, 96 A. 417; Nichols v. Central Vermont Ry. Co., 94 Vt. 14, 109 A. 905, 12 A. L. R. 333.

It is under this rule that fear of hydrophobia (Godeau v. Blood, 52 Vt. 251, 36 A. L. R. 751), apprehension of insanity (Walker v. Boston & Maine R. R., 71 N.H. 271, 51 A. 918), dread of blood poisoning ( Butts v. National Exchange Bank, 99 Mo.App. 168, 72 S.W. 1083), fear of giving birth to a deformed child (Prescott v. Robinson, 74 N.H. 460, 69 A. 522, 17 L.R.A. [N.S.] 594, 124 Am. St. Rep. 987), dread of death from swallowing glass (Watson v. Augusta Brewing Co., 124 Ga. 121, 52 S.E. 152, 1 L.R.A. [N.S.] 1178, 110 Am. St. Rep. 157), are admitted as proper elements of damage. It is to be observed that mere regret, disappointment, or vexation are not mental suffering within the meaning of the rule (Bovee v. Danville, 53 Vt. 183), but fear, worry, and apprehension are typical sorts of it. Egan v. Middlesex, etc., R. Co. (D. C.) 212 F. 562. And it is very properly held that the anxiety must be natural and not speculative (Rogers v. Bigelow, supra), real and not fanciful (Watson v. Augusta Brewing Co., supra).

2. In the course of his argument, counsel for the plaintiff called attention to the fact that none of the defendant's officers or servants had appeared as witnesses, the obvious purpose being to have the jury infer that, if produced, these persons would have given evidence unfavorable to the defendant. To this line of argument the defendant objected, and asked for an exception. The court ruled, in effect, that the argument was improper, saying, "I don't believe you better pursue that line of argument, and you may have an exception." The transcript, to which controlling reference is made, shows that an exception was allowed to the plaintiff. The defendant insists that this is a mistake, and that in fact the exception was allowed to the defendant; and it calls attention to certain circumstances indicating this. But we are bound by the plain terms of the record, and will not allow it to be falsified in this Court. Right or wrong, it is the sole and only basis for appellate action.

3. Counsel for the plaintiff was allowed to urge in argument, that in assessing the damages the jury should consider the present impaired purchasing power of the dollar; and the court instructed them that they might consider it. The defendant excepted. There is no claim that there was any evidence in the case regarding this matter.

The result sought by the law in assessing damages in such cases is compensation--the ascertainment of such a sum as will compensate the plaintiff--so far as a money payment can--for the injury. Necessarily, damages are to be expressed in terms of money. And while money is the standard of value by which the worth of all other property is to be measured, and while, in theory, its value remains constant and unfluctuating, and while it must be admitted that really it is prices which rise and fall amid changing economic conditions, yet, after all, in a very real and a practical sense money itself is a shifting standard, varying in value according to the changes in its purchasing power. As a medium of exchange, its value appreciates or depreciates according to the rise and fall in commodity prices. So it is that, at least so far as those elements of damages properly classed as pecuniary losses--like loss of time, loss of earning power, expenses and the like--are concerned, it is proper for the jury to take into consideration the fact, known to everybody, that the purchasing power of money is at present seriously impaired. And it is so held by the courts. Washington, etc., R. Co. v. La Fourcade, 48 App. D.C. 364; Louisville & N. R. Co. v. Scott's Admr., 188 Ky. 99, 220 S.W. 1066. The question has more often arisen in cases involving the question of excessive verdicts. But the principle is the same, and the decisions are in accord. Noyes v. Des Moines Club, 186 Iowa 378, 170 N.W. 461, 3 A. L. R. 605, and note; Bowes v. Public Service R. Co. (N. J.) 110 A. 699; Melish v. New York Con. R. Co., 108 Misc. 291, 178 N.Y.S. 228; Hance v. United Rys. Co. of St. Louis (Mo. App.) 223 S.W. 123; Duffy v. Kansas City Rys. Co. (Mo. App.) 217 S.W. 883; Hurst v. Chicago, B. & Q. R. Co., 280 Mo. 566, 219 S.W. 566, 10 A. L. R. 174, and note; McCreedy v. Fournier (Wash.) 194 P. 398; Standard Oil Co. v. Titus, 187 Ky. 560, 219 S.W. 1077; Illinois Cent. R. Co. v. Johnston, 205 Ala. 1, 87 So. 866. Whether any different rule should be applied to the elements of damage other than pecuniary losses, like physical suffering and mental distress, is a question neither raised nor considered.

DISSENT BY: WATSON

WATSON C. J., dissenting. I am unable to agree with the majority of my associates that there was no error in the ruling below, permitting counsel for plaintiff, when arguing to the jury on the question of damages, to say to them to "consider the value of a dollar today, as compared with what it was." And in upholding the charge of the court to the same effect.

In law we are compelled to compensate for violated rights in money, and for this purpose to make pecuniary estimates of the value of their violations, the possession of money becomes a kind of legal summum bonum. Terry, Principles of Anglo-American Law, Sec. 126, p. 99. And since the only compensation which the law can compel is a compensation in money, it must be measured by something which will measure the pecuniary loss, and the measure to be applied must be real and a tangible one. 17 C. J. 166C; The A. A. Raven, 222 F. 958; 8 R. C. L. 431, § 8. Actual pecuniary compensation is the general rule, whether the action be in contract or in tort (except where exemplary damages are warranted). 8 R. C. L. 431, § 8. And damages which may be recovered for injuries resulting from the negligence of another are to be arrived at according to general rules of law, framed with reference to the just rights of both parties: Not merely what it may be right for the injured party to receive as just compensation for his injury, but also what it is just to compel the other party to pay. 8 R. C. L. 434, § 8; Spade v. Lynn & B.R. Co., 168 Mass. 285, 47 N.E. 88, 60 Am. St. Rep. 393, 38 L.R.A. 512; Kline v. Kline, 158 Ind. 602, 64 N.E. 9, 58 L.R.A. 397.

By the Constitution of the United States, the Congress shall have power "to coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures." And by the statute enacted by Congress "The gold coins of the United States shall be a legal tender in all payments at their nominal value when not below the standard weight and limit of tolerance provided by law for the single piece, and, when reduced in weight below such standard and tolerance, shall be a legal tender at valuation in proportion to their actual weight." "The silver coins of the United States shall be a legal tender at their nominal value for an amount not exceeding five dollars in any one payment." See Bronson v. Rodes, 7 Wall. 229, 19 L.Ed. 141. In the case United States v. Marigold, 9 HOW 560, 13 L.Ed. 257, the Federal Supreme Court, through Mr. Justice Daniel, said: "The power of coining money and of regulating its value was delegated to Congress by the Constitution for the very purpose, as assigned by the framers of that instrument, of creating and preserving the uniformity and purity of such a standard of value; and on account of the impossibility which was foreseen of otherwise preventing the inequalities and the confusion necessarily incident to different views of...