Messing v. Wilmington City Railway Co. , 21 Del. 526 ( 1905 )

Grubb, J.:

It is for the jury to say to what extent the injuries would deprive him from earning money. Suppose they should arrive at the conclusion that by reason of the injuries testified to the plaintiff is disabled to a certain extent so that his earning capacity is reduced say $100 a year; then the question would be—as he is seeking to recover for permanent injuries which he claims will continue as long as he lives—whether it would not be pertinent then to show how many years he would live ? Say it was a dimunition in earning capacity of $100 a year that was proved and he lived for ten years, it would amount in the aggregate to $1000. And if it is established to the satisfaction of the jury that the plaintiff is injured to the extent of $100 a year in his earning capacity, how are they to know what the aggregate number of years of diminished earning capacity would be unless you show by evidence how many years he would probably live and be able to work if he had not been injured ? What evidence of this is there, then ?—that of experts. These life tables have been made and established by experts and embody their experienced opinions and judgment. Whether such evidence is conclusive testimony or not is not the question ; it is whether it is admissible testimony or not.

I think that, as expert testimony tending to show the probable number of years that the plaintiff would have his earning capacity reduced, and therefore the probable amount of his diminished earning capacity for the number of years he would live, it is admissible evidence before the jury for them to consider; and therefore should be admitted.

I would like to know what answer there can be to that.

Mr. Gray:—I think the fallacy in reasoning for the admission of insurance tables to show the expectancy of life where the injuries may be permanent but the disability is not total, is shown very well in the Iowa case that Mr. Kurtz has just cited, where it speaks of the alternative of the death or the natural disabilities that come upon human beings for work on account of old age. They furnish a false standard to the jury from which they measure the compensation, because in the natural progress of a human being towards the grave, when a man approaches old age, his capacity for work must be less, and if he lived to the full allotted span of life it is the natural result of the gradual decay in human nature that he is not able to work up until the time of his death but is incapacitated from the infirmities attendant upon old age. So that when you get the expectation of life for a man where the disability is not permanent, with the witness upon the stand and his personal appearance and his description of his physical condition before the accident before the jury. I find the latter to be a much safer standard for the jury to determine the extent of his injuries by, than a life insurance table which gives merely his expectancy of life and not his expectancy of work.

It becomes admissible in case of death because the deceased cannot be put upon the stand for the inspection of the jury, consequently they have to consider him as an average man, which the insurance tables compute. The matter of damages in case of death go to the estate that the man would have left, and the jury not being able to see him or judge for themselves from his physical appearance or from his testimony as to his physical condition before the accident or what his probabilities are, by the use of the expectancy of life tables would have some standard by which to estimate how many years he would probably have for the accumulation of an estate.

Grubb, J.:

—Would not that, however, be a stronger reason why, for the just protection of the defendant, it should be excluded where the plaintiff is dead, because otherwise the defendant might be absolutely bound by the life insurance table and the jury obliged to assume that he was the average healthy man, when, if they had him alive before them they might see that he was not likely to live or be able to work so long ? I think the reason is stronger for the admission in case of life than of death.

My position is that it is a standard table made by experienced life insurance experts which is admissible evidence to go before the jury to be considered by them in connection with all the other circumstances in the case.

Pennewill, J.:

—My recollection is that in at least one case such testimony was admitted because the injury was proved to have resulted in total disability, but in the case of McMahon vs. Bangs, (5 Pennewell, 178,) which is the last case as far as we know in which the question was raised, it was admitted where the injury did not, as in this case result in total disability. There the plaintiff, a boy, was struck on the leg by a rock hurled from a blast and the court unanimously admitted the testimony in that case. Upon the authority of that case I have to agree to the admission of this testimony.