Pennsylvania Railroad Company v. McKinley

• Decision Date: 23 February 1961
• Docket Number: No. 14219.,14219.
• Citation: 288 F.2d 262
• Parties: PENNSYLVANIA RAILROAD COMPANY v. Clarence A. McKINLEY.
• Court: U.S. Court of Appeals — Sixth Circuit

288 F.2d 262 (1961)

PENNSYLVANIA RAILROAD COMPANY v. Clarence A. McKINLEY.

No. 14219.

United States Court of Appeals Sixth Circuit.

February 23, 1961.

Charles F. Clarke, Cleveland, Ohio (James C. Davis, Charles F. Clarke, Jr., Peter D. VanOosterhout, Squire, Sanders & Dempsey, Cleveland, Ohio, on the brief), for appellant.

Craig Spangenberg, Cleveland, Ohio (Spangenberg, Hasenflue & Shibley, Cleveland, Ohio, on the brief), for appellee.

Before McALLISTER, Chief Judge, and CECIL and O'SULLIVAN, Circuit Judges.

O'SULLIVAN, Circuit Judge.

The parties will herein be referred to as plaintiff and defendant, respectively. Defendant, Pennsylvania Railroad Company, by this appeal seeks reversal of a judgment in favor of plaintiff, Clarence A. McKinley, entered upon a jury's verdict in the sum of $150,000. Plaintiff was a watchman employed by the defendant at its public grade crossing at Wooster, Ohio. On March 21, 1956, one of defendant's trains struck a moving van on said crossing. Flying debris from the van struck and seriously injured plaintiff. The action was brought under the Federal Employers' Liability Act. Defendant does not here question liability, nor claim that the verdict was excessive. It asks us to order a new trial upon the following grounds:

1) That because there was no evidence offered as to rates of interest, annuity tables or other data from which the jury could ascertain the present worth of damages for future loss of earning capacity, the trial judge should have instructed the jury that no award could be made therefor.

2) That plaintiff's counsel was allowed, on argument, to give his suggestions as to amounts that should be awarded for pain and suffering calculated on a per diem basis, using a blackboard and placard to record and total his estimates.

3) That the trial judge should have instructed the jury to disregard some medical testimony put in evidence by plaintiff.

We shall discuss these claims of error in the above order.

First. Lack of proof of present worth. Neither plaintiff nor defendant offered any evidence suggesting a method of reducing future damages to present worth; no testimony was given as to a rate of interest that could be realized on moneys safely invested; no annuity tables, annuity costs or other like evidence was offered. The trial court did not, by any instructions, explain or direct the use of any specific method of reducing money paid for future damages to its present worth. Defendant made no request for an instruction upon the latter subject, but, at the conclusion of the court's charge, requested him to charge the jury that because there had been no testimony of the above character, no damages for future loss of earning capacity could be awarded.

Here we are not dealing with the question of whether or not a trial judge, with or without a request for instruction, should have advised the jury specifically upon a method of arriving at present worth. At the conclusion of the court's charge, the defendant requested the court to tell the jury that, "no award for loss of future wages could be made because of the failure of plaintiff's evidence to reduce any future wage loss to present value."

Defendant's contention is that in a Federal Employers' Liability Act case, no award may be made for future loss of earning capacity unless there shall have been introduced in evidence, by expert witnesses or otherwise, testimony as to the earning power of money when safely invested, with some evidence as to how the present worth of damages accruing in the future from loss of earning capacity should or could, be determined. Defendant does not define just what evidence was essential, but contends that some evidence which would assist a jury in coming to a reduction of money to present worth should have been before them for their consideration of the subject.

Defendant argues that his position in this regard is sustained by the following decisions of the United States Supreme Court: Chesapeake & O. Ry. v. Kelly, 241 U.S. 485, 36 S.Ct. 630, 60 L.Ed. 1117; Chesapeake & O. Ry. v. Gainey, 241 U.S. 494, 36 S.Ct. 633, 60 L.Ed. 1124; Louisville & N. Ry. v. Holloway, 246 U.S. 525, 38 S.Ct. 379, 62 L.Ed. 867; Gulf, C. & S. F. Ry. v. Moser, 275 U.S. 133, 48 S.Ct. 49, 72 L.Ed. 200; and Western & A. Ry. v. Hughes, 278 U.S. 496, 49 S.Ct. 231, 73 L.Ed. 473.

He suggests that his contention is further supported by the decision of this court in the case of Thompson v. Camp, 6 Cir., 1947, 163 F.2d 396, certiorari denied 333 U.S. 831, 68 S.Ct. 458, 459, 92 L.Ed. 1116. There can be no dispute that these and other authorities establish the rule that in Federal Employers' Liability Act cases, "when future payments or other pecuniary benefits are to be anticipated, the verdict should be made up on the basis of their present value only." Chesapeake & O. Ry. v. Kelly, supra, 241 U.S. at page 491, 36 S.Ct. at page 632.

In the Kelly case, after expounding the general rule, the court said 241 U.S. at page 491, 36 S.Ct. at page 632,

"We are aware that it may be a difficult mathematical computation for the ordinary juryman to calculate interest on deferred payments, with annual rests, and reach a present cash value. Whether the difficulty should be met by admitting the testimony of expert witnesses, or by receiving in evidence the standard interest and annuity tables in which present values are worked out at various rates of interest and for various periods covering the ordinary expectancies of life, it is not for us in this case to say. Like other questions of procedure and evidence, it is to be determined according to the law of the forum."

Defendant relies upon the quoted language for his contention that the court there decided on the essentiality of some type of evidence referred to. We do not so read that decision. In that case, a Kentucky trial court, which was sustained by the Court of Appeals of Kentucky, refused an instruction which would have told the jury that awards for future damages should be reduced to present worth. Likewise, the trial court had given an instruction to the jury which, fairly read, told them they were merely to aggregate the amounts representing future loss of earning capacity over the years during which such earning capacity would be experienced, and the total of these sums would be the amount to be awarded. Such, apparently, had been the rule in Kentucky. Chesapeake & O. Ry. v. Lang's Adm'r, 1896, 100 Ky. 221, 38 S.W. 503; Chesapeake & O. Ry. v. Kelly, 1914, 160 Ky. 296, 169 S.W. 736.

The case of Chesapeake & O. Ry. v. Gainey, 241 U.S. 494, 36 S.Ct. 633, 60 L.Ed. 1124, was decided on the same day as Chesapeake & O. Ry. Co. v. Kelly, and followed it in reversing another Kentucky case. In the case of Gulf, C. & S. F. Ry. v. Moser, 275 U.S. 133, 48 S.Ct. 49, 72 L.Ed. 200, the trial court in an FELA case attempted to cover the method by which the jury should reduce future damages to present worth. The court, however, refused an instruction which would have told the jury that, "you will make your calculations on the basis of the amount of your award, bearing interest at the highest net rate of interest that the testimony shows can be had on money safely invested, and secured as shown by the testimony in this case." The Supreme Court held that the refusal of the proffered request was error. The court did not hold that evidence as to annuity tables, etc., was an essential to the award of such damages.

It is not necessary that we analyze the other decisions of the Supreme Court relied on by defendant. We come to the case of Louisville & Nashville Ry. v. Holloway, 246 U.S. 525, 38 S.Ct. 379, 380. We think it is authority for the proposition that the earlier Supreme Court cases should not be read, as contended by defendant, as adopting a rule that evidence of annuity costs, interest rates, or like testimony, is an essential to recovery. In that case, there was evidence offered by a defendant railroad of annuity tables based upon an interest yield of both six and seven percent. The trial court refused an instruction which would have told the jury that in reducing money to its present worth, they were required to use the six percent rate — the then legal rate of interest in Kentucky. The court had instructed the jury on damages and, without spelling out a mathematical formula for reducing damages for future loss to present worth, advised the jury that for the wrongful death of her husband a widow was entitled to recover, "such an amount in damages as will fairly and reasonably compensate * * * for the loss of pecuniary benefits she might reasonably have received." Mr. Justice Brandeis held that although a request for a more detailed setting out of the applicable rule would have been required if requested, absent such request, the instruction given was sufficient. He stated,

"This ruling (referring to the court\'s charge) did not imply that the verdict should be for the aggregate of the several benefits payable at different times, without making any allowance for the fact that the whole amount of the verdict would be presently paid at one time. The instruction bore rather an implication to the contrary; for the sum was expressly stated to be that which would `compensate.\'"

Having in mind that in the Holloway case just discussed the court sustained the trial court's refusal to give an instruction which would have fixed six percent as the rate of interest to be used in reducing money to its present worth, and sustained a jury's verdict which was arrived at without being restricted to the only evidence offered on the subject, we construe the Holloway case as holding that a jury, unaided by specific testimony as to money values, could themselves, being told that the award should be only money value, properly apply the applicable rule.

In the case before us, the trial judge told the jury that in awarding damages, "the jury will determine the money value which will fully,...