Kavanagh v. Butorac

• Decision Date: 12 December 1966
• Docket Number: No. 20399,No. 1,20399,1
• Citation: 221 N.E.2d 824,140 Ind.App. 139
• Parties: Bernard R. KAVANAGH, Appellant, v. George BUTORAC, Appellee
• Court: Indiana Appellate Court

Page 824

221 N.E.2d 824

140 Ind.App. 139

Bernard R. KAVANAGH, Appellant, v. George BUTORAC, Appellee.

No. 20399.

Appellate Court of Indiana, Division No. 1.

Dec. 12, 1966.

Rehearing Denied Jan. 13, 1967.

James J. Stewart, Richard L. Fairchild, Indianapolis, Murray, Stewart, Irwin & Gilliom, Indianapolis, of counsel, for appellant.

Charles T. Gleason, William J. Wood, Indianapolis, Schortemeier, Eby & Wood, Indianapolis, of counsel, for appellee.

WICKENS, Chief Justice.

The trial court acting without a jury, awarded plaintiff-appellee a judgment of $100,000 for personal injuries. Appellee was a passenger in an auto which collided with a motor vehicle driven by appellant. As a result of the collision appellee suffered an injury resulting in the surgical removal of his left eye and other injuries the latter of which the record treats as of minor significance.

Although the evidence is not conclusive that the damage to appellee's eye was brought about by its forcible contact with the rear view mirror, that probability is hardly disputed. It is established without question that the car in which appellee was riding as a front seat passenger was equipped with seat belts and appellee's lap-belt was unfastened at the time of impact.

At the time of injury appellee was a 38 year old married man with children. He had a graduate degree and was employed as a bacteriologist at an annual salary in excess of twelve thousand dollars. He was interested, and engaged in Little League baseball, swimming, hunting, and other athletic activities.

There was evidence to show that appellee, as a result of the injury, was afraid to go hunting and when swimming he feared to dive. Uncertainty as to his driving, difficulty in parallel parking, and disadvantages with respect to his work were shown by the evidence. In his Little League participation he required help in matters formerly handled entirely by him. His work, he contended, was adversely affected in that he was no longer able to use a binocular microscope and because of his fear of danger he had ceased to handle any 'hot' or dangerous virus. It was shown that his work was dependent upon good vision and that there were dangers in the handling of toxic serums and in immunization of animals. In pouring liquid into a tumbler he was impaired by vision. He had had the experience of burning his hand on a Bunsen burner which he attributed to a lack of depth in vision.

There is evidence as to the adverse psychological effect of the injury on appellee and this is affirmed by a medical witness called by appellant. This witness related: 'He has suffered a psychological trauma as well as a physical one,' and 'There may be hurts underneath; there may be doubts or worries or fears, but strangely enough these are things that an ophthalmologist or surgeon does not ask a patient directly.'

We think the preceding very briefly summarizes that evidence relating to damage which is most favorable to the decision. Although appellant introduced evidence and raised serious questions as to the extent of appellee's disability we are confined in our consideration to that evidence most favorable to appellee. We are, of course, not allowed to weigh the evidence. Dent v. Dent (1960), 241 Ind. 606, 613, 174 N.E.2d 336; Watson v. Watson (1952), 231 Ind. 385, 388, 108 N.E.2d 893; Zorich v. Zorich (1949), 119 Ind.App. 547, 553, 88 N.E.2d 694.

Appellant has asserted that the damages are excessive, that appellee proximately caused his own injury by contributory negligence and that the trial court committed error in refusing to consider newly discovered evidence and erred by certain other evidentiary rulings.

Broadly stated the person injured by the negligence of another is entitled to reasonable compensation. Courts have said that term means such sum as would reasonably compensate him for bodily injuries, for pain and suffering. To that sum shall be added past, present, and future expenses reasonably necessary or incidental to the plaintiff's effort to alleviate his injuries and all pecuniary losses suffered, or to be suffered, as a result of inability to engage in his usual occupation. 'Compensation is the stated goal of a court when measuring damages for personal injuries.' 22 Am.Jur.2d, Damages § 85, pp. 121--122.

By nature, injuries personal to the individual, are incapable of a more definite rule for measurement of damages. Each action is unique and it must be so treated and determined on the facts peculiar to that matter. Because our law seeks to individualize the solution to the problem of properly compensating the victim of torts, no overall expedient applies in every case.

For a formula then, our common law sets only the general guidelines for compensating the victim, each in its own way to be considered by the trier of facts and weighed to determine what the total compensation will be. Because of this personal nature of each case and since the decision is unique to the particular set of facts our courts have said the trier of facts is to be given 'sound discretion,' and 'liberal discretion' where damages cannot be defined and calculated with mathematical certainty or by any exact standard. Haskell, etc., Car Co. v. Trzop (1920), 190 Ind. 35, 48, 128 N.E. 401; Jackson Rec. v. Rutledge (1919), 188 Ind. 415, 429, 122 N.E. 579; Goldblatt Bros., Inc. v. Parish (1941), 110 Ind.App. 368, 380, 33 N.E.2d 835, 38 N.E.2d 255; Hooper v. Preuss (1941), 109 Ind.App. 638, 641, 642, 37 N.E.2d 687.

With the foregoing in mind we have examined the record and briefs in this appeal. Appellant has documented numerous cases to show that the instant judgment far exceeds what as he says 'in Indiana or elsewhere' has been allowed for what he submits to be 'comparable injury'. We are not able to say the loss of an eye in one case is worth the same or just about the same in another case. If such a system is to be desired (and we express no sentiment for such idea) it must come from legislation. ¹ Our common law requires each case to rest finally on its own merits.

This has been well expressed by many authorities and we call attention to the language of the Supreme Court of Louisiana:

'* * * (C)ases relied upon may be similar in that each of them involves a similar injury such as a broken arm, the loss of an eye or eyes, or the loss of some member of the body. Thereafter, however, the similarity ceases for each case is different, and the adequacy or inadequacy of the award should be determined by the facts and circumstances peculiar to the case under consideration. The primary purpose of the judge or the jury in fixing the award in a personal injury case is to adequately compensate the injured person for his injury under the facts shown to exist in his case.' Gaspard v. LeMaire (1963), 245 La. 239, 158 So.2d 149, 158.

We would have it understood that the duty devolves on a trial court to determine the amount of damages. Whether the court is assisted by a jury or is not, review on the appellate level should be the same. The determination of the amount is not our decision. We are not required and we make no effort to say what our decision might have been if we were triers of the dacts.

Our Supreme Court has said:

'That the jury assessed higher damages than we would have done, is no reason why we should set aside the verdict.' Chenowith v. Hicks (1854), 5 Ind. 224, 226.

Chancellor Kent who appears to have originated the rule as that rule is presently used in Indiana, as to when a reversal should be ordered, said:

'The damages, therefore, must be so excessive as to strike mankind, at first blush, as being, beyond all measure, unreasonable, and outrageous, and such as manifestly show the jury to have been actuated by passion, partiality, prejudice, or corruption.' 22 Am.Jur.2d, Damages, § 366, p. 473; New York Cent. R.R. Co. v. Johnson, Admx., etc. (1955), 234 Ind. 457, 466, 127 N.E.2d 603; Ideal-Fitzgerald Baking Co. v. Cheek (1965), Ind.App., 205 N.E.2d 332, 333.

Appellant also argues that the excessive amount of the verdict is exhibited by the fact that the judgment was for an amount '* * * more than twice the amount that plaintiff was willing to accept for his claim immediately prior to trial.' The information concerning settlement negotiations has no proper place in the record. It should receive no consideration from the trial court or from this court on appeal. To promote and encourage parties to negotiate and thus to stimulate compromise is desirable and for that reason evidence of efforts that the parties may have made toward settlement are not accepted for any purpose. Where the verdict was for five times 'the most appellee ever asked in settlement' our Supreme Court said:

'Since it is the policy of the law to favor and encourage the compromise of differences, one who makes an unsuccessful effort toward that end should not be penalized.' Indiana Insurance Co. v. Handlon (1939), 216 Ind. 442, 447, 24 N.E.2d 1003, 1005.

Our decision is that we cannot reverse on the ground that the verdict is excessive. This also is the answer to the question briefed by both parties as to whether this court has authority to order a remittitur under the circumstances here.

Next we are concerned with appellant's contention of the existence of contributory negligence as a matter of law. This argument is urged because of two asserted reasons: (1) 'on failing to keep a proper lookout' and (2) the failure 'to use an available safety device, to-wit: a seat belt, which the uncontradicted evidence established would have prevented or substantially minimized the appellee's injuries.'

We are convinced from appellant's brief that a passenger has some duty to maintain a proper lookout. 3 I.L.E., Automobiles, § 87, p. 442; 21 I.L.E., Negligence, § 4, p. 267.

Further, if appellee as a passenger in the exercise of reasonable care should have seen the approaching car of appellant and could have thereafter in the exercise of such care...