Klinge v. Southern Pac. Co

• Decision Date: 03 April 1936
• Docket Number: 5350
• Citation: 89 Utah 284,57 P.2d 367
• Court: Utah Supreme Court
• Parties: KLINGE v. SOUTHERN PAC. CO

57 P.2d 367

89 Utah 284

KLINGE v. SOUTHERN PAC. CO

No. 5350

Supreme Court of Utah

April 3, 1936

Rehearing Denied June 16, 1936.

Appeal from District Court, Third District, Salt Lake County; David W. Moffat, Judge.

Action by Johnny Klinge against the Southern Pacific Company. From an order of dismissal of the action without prejudice after granting new trial subsequent to return of verdict for plaintiff, defendant appeals, and plaintiff moves to dismiss the appeal.

MOTION TO DISMISS APPEAL DENIED, AND ORDER AFFIRMED.

Bagley Judd & Ray, of Salt Lake City, for appellant.

Willard Hanson, Shirley P. Jones, and A. H. Hougaard, all of Salt Lake City, for respondent.

EPHRAIM HANSON, Justice. WOLFE, Justice, FOLLAND, Justice, concurring in part, dissenting in part. HARRIS, District Judge, ELIAS HANSEN, Chief Justice, dissenting. MOFFAT, J., being disqualified, did not participate.

OPINION

EPHRAIM HANSON, Justice.

The plaintiff and the respondent brought this action under the Safety Appliance Act (45 U.S.C. A. § 1 et seq.) and the Federal Employers' Liability Act (chapter 2, title 45 U.S.C. A. §§ 51-59) against the defendant and appellant, first in the district court of the Third judicial district of the state of Utah, to recover damages for a permanent injury sustained by plaintiff in the course of his employment as a brakeman in the employ of the defendant. As shown by the record, the plaintiff in attempting to board a moving freight car and taking hold of the handhold of the car, the handhold, which was defective, gave way, causing the plaintiff to be thrown under the car and so injured his right arm as to require amputation of it several inches below the shoulder, and caused him great pain and suffering from which he continued to suffer at the time of the trial.

He was at the hospital receiving treatment for about a month, and thereafter received further treatment at the doctor's office for a month or six weeks. He at the time of the accident was 33 years of age, and had a life expectancy of 33 years. Prior to the accident he was in good health, strong, and able-bodied. He had been in the employ of the defendant for about 18 years, for the first 8 years doing carpenter and bridge work, earning from $ 5 to $ 7 a day, and the last 10 years prior to the accident as a brakeman in the transportation service, and during such period, as testified to by him, he earned on an average each year $ 2,400, and as shown by evidence of the defendant at least $ 154 a month, or about $ 1,850 a year.

The only experience or training the plaintiff had was in railroading. He had no education, training, or experience to follow any other occupation or vocation, and was not capable of doing any kind of manual work requiring the use of two hands and arms, and since the accident, and up to the time of the trial, he was unable to earn and had not earned anything; that another had to wash his hand, cut the meat he ate, tie his shoes, and assist him in putting on and buttoning some of his wearing apparel, etc.

The case was tried to a jury. The liability of the defendant under the act was not disputed at the trial. The only question submitted to the jury was the amount of damages to be awarded. In such particular the court charged the jury that in determining the amount of damages they should take into consideration all the facts and circumstances in evidence bearing on the nature and extent of the injuries, the pain and suffering, if any, endured by the plaintiff, his loss of time and inability to work, the extent to which his injuries impaired his future earnings, and that:

"In considering the element of loss in wages, if any, which the plaintiff may sustain in the future on account of the loss of his arm, you are instructed that it is proper to consider plaintiff's expectancy of life. You are further instructed, however, that such loss must be figured on the basis of the present value of a yearly income equivalent to the probable reduction of plaintiff's earnings. The most the plaintiff would be entitled to as compensation for the impairment or loss of future earning power would be, not the total amount in wages which he would probably earn during his life expectancy, but the value or equivalent if paid now in a lump sum by the defendant in advance instead of being earned and received in monthly installments during the remaining years of his life.

"You are further instructed that the legal rate of interest fixed by the law of this state is eight per cent, and in computing the present worth of money as recited in the foregoing paragraph of this instruction you may figure it on the basis of eight per cent per annum." (Italics ours.)

Plaintiff took exception to the italicized portion of the charge, and especially to the statement that in computing the present worth the jury "may figure it on the basis of 8 per cent. per annum," the legal rate of interest fixed by the laws of Utah. Rev. St. 1933, 44-0-1.

The jury, on May 13, 1931, rendered a verdict for $ 12,000 in favor of the plaintiff and against the defendant, upon which judgment was entered accordingly. In due time the plaintiff served and filed a motion for a new trial on the ground of errors of law occurring at the trial and excepted to by the plaintiff; and that the amount of the verdict rendered was inadequate. Upon argument and submission of the motion, the matter was taken under advisement, and on due consideration thereof, and being sufficiently advised, the court, on February 15, 1932, granted the motion and ordered a new trial of the case. Thereafter, and on February 17, 1932, the plaintiff filed a motion dismissing the action without prejudice, and on April 1, 1932, the action on the prior motion of the plaintiff over the objection of defendant was ordered dismissed without prejudice.

On the filing of his motion of dismissal, plaintiff commenced a new second action against the defendant, but planted the same in the federal District Court of Utah to recover damages for the same injury heretofore sought to be recovered in the state district court. On a trial there had to a jury, a verdict was rendered, June 1, 1932, in favor of plaintiff and against defendant for $ 27,000. A motion for a new trial in the federal court was filed by defendant June 7, 1932. Pending a disposition of that motion, defendant, on July 20, 1932, served and filed a notice of appeal appealing to the Supreme Court of Utah from the order dismissing the action in the state district court. The motion for a new trial in the federal court was denied August 27, 1932, and on October 29, 1932, the defendant took an appeal from the judgment in the federal court to the Circuit Court of Appeals upon grounds, among others, that the verdict of $ 27,000 was excessive; that the federal court abused its discretion in refusing to grant a new trial; and that the court erred in refusing the defendant's request to charge on the subject of the present worth of money. The Circuit Court of Appeals refused to disturb the judgment on any of such grounds, but reversed the judgment and ordered a new trial of the case on the sole ground of alleged misconduct of the jury. Southern Pac. Co. v. Klinge, 65 F.2d 85, 87.

The case now before this court is on the appeal taken by the defendant from the order of dismissal of the action without prejudice in the state district court, and while the case in the federal court was and still is pending on the order of the Circuit Court of Appeals granting a new trial. The principal contentions of the appellant are that after the new trial was granted in the state district court, plaintiff without the consent of the defendant was without right to dismiss the action without prejudice, and the court without authority on motion of the plaintiff to so dismiss the action; that the charge which the state district court gave on the subject of present worth of money stated the law applicable in such case; that the verdict of $ 12,000 rendered by the jury was adequate and that the court abused its discretion in granting a new trial; and, hence, the appellant on this appeal prays that the dismissal of the action be vacated, the granting of the new trial set aside, and that the judgment in favor of the plaintiff and against defendant on the verdict of $ 12,000 be reinstated as the final judgment in the cause.

On the contrary, it is contended by the respondent that the granting of the new trial set aside both the verdict and judgment and left the case exactly in the position it occupied before there had been a trial and in the same condition as if no previous trial had been had; that the order or judgment of dismissal of the action, though without prejudice, terminated the litigation in that action, sent the case out of court without a judgment of any kind against the defendant, and thus there was no existing adverse judgment affecting the defendant from which an appeal properly could be prosecuted by it; that the respondent after the new trial was granted had the absolute right to dismiss the action without prejudice and the court authorized to so dismiss it on plaintiff's motion; that the charge of the state court on the subject of present worth, to which the plaintiff had excepted, was erroneous and prejudicial to him, and that upon such ground alone the state district court was justified and authorized in granting the new trial; that the verdict was inadequate; and that no abuse of discretion was shown by the granting of the new trial, the burden of which was on the appellant to show such abuse.

In the first place, if the portion of the charge to which exception was taken, and which the court gave on the subject of present worth, was erroneous and prejudicial to the rights of the...