Theobald v. Grey Public Relations, Inc.

• Decision Date: 29 June 1972
• Citation: 334 N.Y.S.2d 281,39 A.D.2d 902
• Parties: Nell THEOBALD, Plaintiff-Respondent, v. GREY PUBLIC RELATIONS, INC., et al., Defendants-Appellants, Dawn Animal Agency, Inc., et al., Defendants-Appellants-Respondents, David Racz Sabo, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 281

334 N.Y.S.2d 281

39 A.D.2d 902

Nell THEOBALD, Plaintiff-Respondent, v. GREY PUBLIC RELATIONS, INC., et al., Defendants-Appellants, Dawn Animal Agency, Inc., et al.,

Defendants-Appellants-Respondents, David

Racz Sabo, et al., Defendants.

Supreme Court, Appellate Division, First Department.

June 29, 1972.

R. Conason, New York City, for plaintiff-respondent.

W. F. McNulty, New York City, S. A. Fritz, Mineola, for defendants-appellants.

T. A. Rizzo, T. R. Newman, New York City, for defendants-appellants-respondents.

T. R. Newman, New York City, for defendants.

Before STEVENS, P.J., and McGIVERN, KUPFERMAN, MURPHY and McNALLY, JJ.

PER CURIAM.

Judgment, Supreme Court, New York County, after jury trial, reversed, on the law, on the facts and in the exercise of discretion, and vacated, and a new trial directed, with costs and disbursements to abide the event, unless plaintiff stipulates within 20 days of the publication of the order entered hereon to accept the sum of $150,000 in lieu of the amount of the judgment as appealed from, in which case the judgment, as modified, will be affirmed as to plaintiff against Grey Public Relations, Inc., Hoffman Motors Corp. and Dawn Animal Agency, Inc., with interest, and respondent shall recover of said appellants $50 costs and disbursements of the appeal. The charge of the court submitted the issue of absolute liability to the jury and there is ample evidence to support its finding of liability. We agree with the dissent that even if, as claimed, negligence were charged, there would be sufficient to sustain it.

We find that the figure of $250,000, to which the original verdict was reduced, still to be grossly excessive in light of the nature and extent of the injuries and the special damages claimed. Plaintiff's doctors' bills totalled $1,880, her hospital expenses $2,440.26, plus a claimed loss of earnings of $800, making a total of $5,120. Plaintiff also has a residual scar approximately five by nine inches on the left upper leg. In considering all of the factors involved, we deem the figure of $150,000 to be adequate compensation.

We find no basis for the imposition of liability upon International Automobile Show, Inc. (International) and accordingly, as to it the complaint is dismissed on the law. International neither procured, harbored or kept the animal, made no representations to plaintiff regarding the docile qualities of the lion, nor did it in any way control the animal's actions. It was at most a lessor of the premises. In considering the size of the verdict, contrary to the 'realistic' evaluation of the award expressed in the dissent, '(T)he costs of litigation, including lawyers' fees, may not be considered . . . Nor should one introduce . . . speculation as to continuing inflation' (Zaninovich v. American Airlines, 26 A.D.2d 155, 160, 271 N.Y.S.2d 866, 872; see also C & O Railway v. Barnaby, et al., 6 Cir., 414 F.2d 309; Harper & James, The Law of Torts, Vol. II, § 25.11).

All concur except McGIVERN, J., who dissents in the followinig memorandum:

I would affirm. In so doing, I am willing to concur in the reduction of the jury's verdict by the Trial Judge, but no further. I think the additional cutting down of a jury's verdict from a half a million ($500,000) dollars to one hundred fifty thousand ($150,000) dollars represents too radical a decapitation and too spectacular a substitution of our judgment for that of the jury; and it also fails to make a realistic allowance for inflation and an attorney's fee. That the present value of the dollar is a proper consideration has been countenanced by the Court of Appeals. Cf. Neddo v. State of New York, 300 N.Y. 533, 89 N.E.2d 253, affirming 275 App.Div. 492, 90 N.Y.S.2d 650; affirming 194 Misc. 379, 85 N.Y.S.2d 54. See, also, Lucivero v. Long Island R.R. Co., 22 Misc.2d 674, 675, 200 N.Y.S.2d 728, 730;

'The jury also had a right in coming to a proper evaluation of the loss sustained by the decedent's next of kin to consider the constant erosion in the value of the dollar and the present and ever upward spiraling cost of living. . . .' And see also: N.Y. Pattern Jury Instructions, Comment 2.290, p. 478.

The authorities provided by the majority are either unhelpful or inapposite. As to Zaninovich v. American Airlines, 26 A.D.2d 155, Cf. candid footnote, page 160, 271 N.Y.S.2d 866. The case of C. & O. Railway v. Barnaby, et al., 414 F.2d 309, involves compensation under the Federal Employers' Liability Act, and is far afield. As to Harper & James, the Law of Torts, Vol. II, § 25.11, I am indebted to the majority for the following erudition:

'. . . For the most part damages will naturally be assessed in terms of the value money has at the time of those events which become significant in a lawsuit. . . . If the economy is marked by gradually rising costs, verdicts based on today's wages and costs and ideas of the value of money will naturally tend to exceed verdicts of a decade or more ago. . . .

'. . . there is a well-nigh universal recognition that both courts and juries should take account of well-known and apparently more or less permanent changes in the purchasing power of money. Many courts would sanction a charge to the jury in general terms to this effect.'

Because of an arbitrary rule of common law, an attorney's fee is not an item of compensation, and I am not suggesting it is a proper item for a jury, but in reducing the verdict, we, as an appellate court, cannot blind ourselves to the fact there has been a jury trial here, and we know the attorney's fee will work a further diminution of what the...