Power v. City of Augusta

• Decision Date: 03 April 1911
• Citation: 191 F. 647
• Court: U.S. District Court — Eastern District of Kentucky
• Parties: POWER v. CITY OF AUGUSTA.

191 F. 647

POWER v. CITY OF AUGUSTA.

United States Circuit Court, E.D. Kentucky.

April 3, 1911

Horstman & Horstman, H. J. Power, and M. J. Hennessey, for plaintiff.

M Hargett, for defendant.

COCHRAN District Judge.

This cause is before me on motion for new trial. Three grounds are relied on:

(1) Error in not sustaining motion to instruct the jury peremptorily to find for the defendant. I still think, as I held at the trial, that this was a case for the jury. I do not have a transcript of the evidence before me, and hence cannot undertake to demonstrate this as I might attempt to do did I so have it. I considered the matter carefully at the trial when all the evidence was fresh in my mind, and, as I recall it now, I would not have been warranted in not submitting the case to the jury.

(2) Error in the instruction as to the measure of damages. The injury suffered by the plaintiff was a broken kneecap and consequent permanent disability. I told the jury that they should allow the plaintiff, if they found for her, such reasonable sum as would compensate her for three distinct harms which she had suffered, to wit, (1) pain and suffering; (2) expense of cure; (3) defective limb.

The latter item was the permanent injury which she sustained. It is this item of which complaint is made. It is claimed on behalf of defendant that it is the law of this state as laid down by the Court of Appeals that, in case of a permanent injury, the recovery so far as it is concerned should be limited to the reduction of the power to earn money thereby occasioned, and that I erred in not so limiting the recovery because of the defective limb in this case. I think that the defendant's counsel has made good his contention as to the holding of the Court of Appeals in this particular. He cites L.C. & L.R.R. Co. v. Case's Adm'r, 9 Bush (Ky.) 728; L. & N.R.R. Co. v. Ward's Adm'r, 44 S.W. 1112, 19 Ky.Law Rep. 1900; L. &amp N.R.R. Co. v. Ward's Adm'r, 44 S.W. S.W. 27, 24 Ky.Law Rep. 1623; L. & N.R.R. Co. v. Logsdon, 114 Ky. 746, 71 S.W. 905; L. & N.R.R. Co. v. Cleaver (Ky.) 89 S.W. 494; Louisville Gas Co. v Fuller, 122 Ky. 614, 92 S.W. 566; Lexington Ry. Co. v. Herring (Ky.) 96 S.W. 558; Id.(Ky.) 97 S.W. 1127; S.C. & C.R.R. Co. v. Core (Ky.) 96 S.W. 562; Lexington Ry. Co. v. Britton, 130 Ky. 676, 114 S.W. 295; L. & N.R.R. Co. v. Crow (Ky.) 118 S.W. 365; Belleview v. England (Ky.) 118 S.W. 994. The rule laid down in these decisions as to the measure of damages in personal injury cases where death does not ensue is that the recovery should be confined 'to expense of the cure, the value of the time lost, a fair compensation for the physical and mental suffering caused by the injury, and for any permanent reduction of the power of earning money. ' The Case and Ward Cases were death cases, and hence did not involve the measure of damages in a case where death did not ensue. In the Case Case, however, there was a dictum as to the measure of damages in such a case. This dictum was based on Sherman & Redfield on Negligence as an authority. It stated the measure as it has been so held to be, and is the source of this position of the Court of Appeals. The Court of Appeals seemingly has followed this dictum ever since. In each one of these cases there was a reversal of the judgment of the lower court because the measure was not given as above stated.

In the Mason Case the measure had been stated to be compensation for suffering, physical and mental, loss of time, and 'all such further injury, if any, temporary or permanent, which they may believe from all the evidence has accrued or is reasonably certain to accrue as the direct result of the injury. ' In the Logsdon Case it had been stated to be compensation for time lost, pain and suffering endured or to be endured, expense of treatment, and 'the disability to labor, move about and enjoy life,' suffered or to be suffered directly resulting from the injury. In the Cleaver Case the jury had been told that in estimating the damages they 'should take into consideration the physical pain and mental anguish suffered by plaintiff, if any, by reason of his injuries, his loss of time, if any, from his business, and the impairment, if any, of his power to earn money,' and had not been limited thereto. In the Fuller Case the measure had been stated to be compensation for the 'injuries * * * sustained,' 'including' pain and suffering, mental and physical, and '- permanent injury if any which diminished her capacity for labor and the enjoyment of life.'

In the Herring Case the measure had been stated to be such sum as would 'fairly compensate the plaintiff for any injury done her by reason of her fall, ' and the jury were told that in estimating this compensation they should allow 'for any pain suffered by her, mental and physical,' and 'for the loss of her foot. ' It was held that the jury should have been confined to compensation for 'the value of time lost, reasonable expenses incurred and for physical and mental suffering caused by the injury and for any reduction of her power to earn money. ' In the Case Case the jury were told that, in estimating the damages, they might take into consideration physical pain and mental anguish, 'disability whether partial or permanent to use her right arm, ' expense incurred, and nervous and physical shock. It was held that they should have been told to allow the plaintiff a reasonable compensation 'for physical pain and mental sufferings endured by her, or which it is reasonably certain she will endure, for loss of time, if any, the reasonable expense, if any, incurred in effecting her cure, and for the permanent impairment, if any, of her ability to earn money. ' In the Britton Case the jury had been told to allow plaintiff such sum as would fairly compensate her 'for any injury done to her by reason of being thrown against the seat of the defendant's car,' and that they might include expense reasonably incurred and physical pain and mental anguish. In the Crow Case the terms of the instruction as to measure of damages are not given, but it was held to be erroneous, in that it was not confined to 'the expense of cure, value of time lost, a fair compensation for physical and mental suffering caused by the injury, and for any permanent reduction of the power to earn money. ' In the England Case the jury were told that, in addition to suffering, mental and physical, loss of time, expenses incurred, and impairment of capacity to earn money, they might compensate plaintiff 'for any diminution of his power to pursue the course of life he might otherwise have done.'

One thing that strikes me in regard to these cases is how slow lawyers representing plaintiffs in personal injury cases have been in tumbling to this position of the Court of Appeals. Otherwise it would seem that they would have seen to it that no such errors were committed. Here are nine recent cases where the judgment of the lower court was reversed because of error in the instructions as to the measure of damages in relation to the recovery for the permanent injury. It is somewhat strange, too, that the trial courts should so frequently err in this particular. I think I can see in this an indication that one does not naturally take to this position. It found its origin, as we have seen, in a death case. In such cases it is well settled that the recovery is limited to the commercial value of the life of the decedent to his estate. There is no reason to doubt the soundness of this position, and in determining this value the sole thing to be taken into consideration on the estate's side of the account are the earning capacity of the decedent and his or her probable duration of life. But that such is the rule in a death case has no legitimate bearing on what should be the rule in a case where death does not ensue, but involves a permanent disability or harm.

In such a case the recovery is to compensate for a harm done to the party injured, whereas in a death case it is to compensate for a harm done to others. It is dangerous, therefore, in determining what should be the rule in a case where death does not ensue, at least, to follow blindly expressions in a death case. I do not find the matter considered on its merits except in one of the cases, and that was in the Herring Case, in response to a petition for rehearing, 97 S.W. 1127. There the jury had been told to allow compensation to the plaintiff for the loss of her foot just as in this case I told the jury they should allow compensation to plaintiff for her defective limb. In his response Judge Hobson said:

'Different people might have very different ideas as to the amount of money that would compensate a woman for the loss of her foot. Such an instruction would be, in effect, to give the jury no criterion of damages, and is equivalent to an instruction to them to find for the plaintiff such a sum as they deemed right considering the injury she had received.'

But the same reasoning is against any allowance of compensation for suffering, physical and mental, due to the injury itself. Different people may have different ideas as to this. No criterion for determining how much shall be allowed on this account is given. And the jury as to it are in effect told to allow such sum as they deem right-- considering the injury received. Such a position as that of the Court of Appeals shuts out all recovery for a permanent harm that in no way affects the capacity to earn money.

These considerations have led me to doubt the soundness of this position of the Court of Appeals, and, as this is a matter of general jurisprudence and I am not bound to follow that court if it does not conform to my views, I have been led to look into the decisions of other appellate courts. The...