Loftin v. Wilson

• Decision Date: 10 March 1953
• Citation: 67 So.2d 185
• Parties: LOFTIN et al. v. WILSON. MILLS et al. v. WILSON.
• Court: Florida Supreme Court

Page 185

67 So.2d 185

LOFTIN et al. v. WILSON.

MILLS et al. v. WILSON.

Supreme Court of Florida, Special Division A.

March 10, 1953.

Rehearing Denied Sept. 21, 1953.

Loftin, Anderson, Scott, McCarthy & Preston, Miami, Russell L. Frink, Jacksonville, Robert H. Anderson and William C. Steel, Miami, for Scott M. Loftin and John W. Martin, as trustees of property of Florida East Coast Ry. Co.

Walton, Hubbard, Schroeder, Lantaff & Atkins and Dixon, DeJarnette & Bradford, Miami, for H. L. Mills and Kathryn Mills, individually and as copartners comprising copartnership trading and doing business as H. L. Mills Const. Co.

Nichols, Gaither & Green, Perry Nichols and William Clinton Green, Miami, for appellee.

WHITE, Associate Justice.

These appeals bring for review a judgment entered upon the verdict of a jury for $300,000 against two of three defendants in an action for personal injuries. We are called upon to decide whether or not the verdict is excessive.

Plaintiff in the court below, appellee here, one Wilson, sustained serious bodily injuries as a result of a 'crossing accident'. At the time he was a 'trainman' employed on a work train of Florida East Coast Railway, one of the appellants. The train collided with a ten ton Diesel automobile truck belonging to H. L. Mills and Kathryn Mills a co-partnership doing business under the firm name of 'H. L. Mills Construction Company', the other appellant.

The work train was engaged in spraying weeds and undesirable growth upon the railroad track. The spraying operation and the spraying equipment was under the control of the third defendant, Allied Chemical and Dye corporation. The operation of the train was under the supervision of the employees of the railroad company, including Wilson, the injured plaintiff. In the order of its approach along the track, toward the crossing in question,, the train consisted of, first, the spray car, next two tank cars filled with the chemical solution used in spraying the weeds, next a Diesel locomotive, proceeding forward, and last a 'caboose'. Wilson was standing on top of the spray car, passing signals back to the engineer to regulate the progress of the train. As a result of the collision, the spray car was derailed and thrown some distance from the track. Wilson fell to the ground amid the wreckage of the truck and the spray car. He was painfully and permanently injured. His right foot was crushed and mangled. Bones in each hand were fractured. He was saturated by the chemical solution and lost several teeth. He lost some of his hair temporarily. In an effort to save his foot, skin grafts were made from his uninjured leg. He was hospitalized 131 days and had to use crutches for more than a year. He was in court at the time of the trial wearing a specially built shoe, designed to partially compensate for the fact that only a portion of his foot remained.

Wilson sued the three defendants upon a claim of joint liability. His claim against his employer, the railroad company, was upon the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. His claim against the construction company was upon common law principles of tort liability. For similar cases see: Southern Pac. Co. v. Ralston, 10 Cir., 1933, 62 F.2d 1026; Id., 10 Cir., 67 F.2d 958; Southern R. Co. v. Blanton, 1937, 56 Ga.App. 232, 192 S.E. 437; Id., 1938, 59 Ga.App. 252, 200 S.E. 471; Id., 1940, 63 Ga.App. 93, 10 S.E.2d 430; Howard v. Atlantic Coast Line Ry Co., 1951, 84 Ga.App. 307, 66 S.E.2d 87; Casseday v. Baltimore & O. Ry. Co., 1941, 343 Pa. 342, 22 A.2d 663; Missouri-Kansas-Texas R. Co. v. McKinney, Tex.Civ.App., 1939, 126 S.W.2d 789; Id., 1941, 136 Tex. 75, 145 S.W.2d 1081.

Questions regarding the right to join defendants in such cases as well as questions of severance, are discussed in Way v. Waterloo etc. Co., 1947, 239 Iowa 244, 29 N.W.2d 867, 174 A.L.R. 723; and Annotation 174 A.L.R. 734.

The chemical company was exonerated from liability in the lower court and no point is made here regarding the propriety of that action. To all intents and purposes, it has been dropped as a party to the proceedings.

The injury occurred October 20, 1949. The verdict was entered January 16, 1952. Hospital and medical expenses incurred prior to the trial amounted to $7791.50. There was proof at the trial that plaintiff would need further medical attention, although a basis for computing the value thereof was left to some uncertainty. In every case, plaintiff must afford a basis for a reasonable estimate of the amount of his loss and only medical expenses which are reasonably certain to be incurred in the future are recoverable.

The construction company has computed the amount of this item at $2900.00. The railroad company computed it at $8160. The latter figure includes $5,280.00, estimated as being the cost of purchasing the specially designed shoes to be worn by plaintiff throughout the period of his future life expectancy.

At the time of the injury, plaintiff was earning $443 per month. He had been unable to return to gainful employment, so that the sum of $11,800 was due him on the date of the trial for earnings previously lost.

At the time of the trial plaintiff was 46 years of age. It was stipulated that his life expectancy at that time was 24 years and 150 days.

It is contrary to reason to assume that Wilson must remain in idleness the balance of his life on account of his injuries. Serious though they were, his earning capacity is not completely gone. He had been a railroad employee for seven years. Prior to that time he was a bookkeeping machine operator and a teller in a bank. He is a high school graduate. Plaintiff's counsel suggested in his summation, that the jury compute the value of his diminished earning capacity by assuming that he could earn an average of $100 per month, notwithstanding his injuries. Thus, his net loss per annum would amount to $4,116. When reduced to present worth, using the annuity value of One Dollar, at 3% interest for an individual 46 years of age, the result is $64,522.41.

When computing the present worth of future loss of earning power by the use of an annuity table, it may be proper to consider certain factors. Such a formula assumes that the individual in question will live the exact period of the life expectancy of an individual of that age as fixed by the mortality tables, and that the value of his lost earning capacity will be exactly the same each year for that period of time in the future. Mortality tables do not presume to establish as a certainty that any person of the age indicated will live for the identical period specified. A mortality table is to be used only as a factor with all the other factors shown by the evidence with which the jury is to determine as best it can the life expectancy of the person in question. With the expectancy indicated by the table as a basis of calculation, the jury must consider the person's health, habits, occupation, surroundings and any other elements, which in his case will be likely to operate for or against his expected length of life, as well as the fact that his earning power may diminish as his physical and mental strength decline. Due allowance should be made for the decline of earning power because of the abatement of mental and physical vigor consequent upon the passage of time. Littman v. Bell, etc. Co., 1934, 315 Pa. 370, 172 A. 687.

In addition, it may be in order to make allowance for the fact that no individual has a practical capacity for working each week during the remainder of his life. Holidays, illnesses, and at least some vacations, are essential to the maintenance of earning capacity. Renault Lumber Yards v. Levine, Fla.1950, 49 So.2d 97. Within limits, the jury likewise may take into consideration opportunities for promotions and prospects for increased capacity as shown by the evidence. See 25 C.J.S., Damages, § 87, p. 625; 15 Am.Jur. p. 779, Sec. 338; Annotation 15 A.L.R.2d 418.

When the amounts previously mentioned are summarized, the following result is obtained:

                Medical expense incurred           $ 7,791.50
                Medical expense to be incurred
                 in future                           8,160.00
                Loss of earnings to date of trial   11,800.00
                Diminished earning capacity         64,522.41
                                                   ----------
                    Total                          $92,273.91
                

When this sum is paid to the plaintiff, it is seen that he has been made whole, so far as his monetary loss is concerned. His medical expenses, both past and future, have been paid by the tort-feasor. He has been reimbursed for every dollar of his lost earnings before the trial and in addition has been paid a sum which will afford him full compensation for the remainder of his life for the diminished earning power occasioned by the permanency of his injury.

In addition, plaintiff is entitled to compensation for his physical pain and suffering directly resulting from the wrongful acts of the defendants, if any, including pain and suffering incident to surgical operations or medical treatment.

Pain and suffering have no market price. They are not capable of being exactly and accurately determined, and there is no fixed rule or standard whereby damages for them can be measured. The award for pain and suffering must be limited to compensation. However, compensation in this connection is not to be understood as meaning price in dollars and cents as one might charge another to endure the same pain as has been suffered by the plaintiff. No sane individual would deliberately go through the plaintiff's experiences in this case for all the money in the world. Nor is such compensation to be understood as meaning value as one would engage a clerk or laborer on a per diem basis. Compensation in this connection is to be understood as describing an allowance looking toward recompense for, or made because of, the suffering consequent upon the injury. Any sum arrived at on the basis of another...