Mickle v. Blackmon , 252 S.C. 202 ( 1969 )

Lionel K. Legge, Acting Associate Justice

(dissenting in part) :

I cannot escape the conviction that the amount of the verdict in this case is so excessive as to require a new trial.

Where permanent total disability is involved, as it is here, there can of course be no precise measure of compensatory damages. Not all the money in the world can restore vision to a lost eye, or cure the paralysis resulting from an injury such as the record here shows the respondent to have sustained. But it does not follow that one who has been thus permanently disabled by the negligent act of another is entitled to a limitless verdict. For, since money is the only medium of compensation, it seems to me that where the principal element of the injury is physical, as is the case here, full compensation must of necessity be measured, primarily, by such amount of money as will enable the injured person to live his remaining days as happily and comfortably as possible for one in his condition, — in pleasant surroundings, free from financial worry, able to obtain competent medical and nursing care and such other services as may be available and appropriate for his peace of mind and his physical welfare. The measure of damages thus suggested is of necessity inexact; but at least it attempts to relate the physical and financial consequences of permanent injury to the compensative property of money. It does not take into account the other, quite imponderable, elements of pain and of mental anguish that in a proper case are includable in compensatory damages. But in most cases, and certainly in the case presented by the record here, where the primary and principal element of damage is disability and thus susceptible of measurement in terms of the purchasing power of money, mental anguish and physical suffering should be recognized as secondary elements of damage, and award therefor, if made at all, should be added with due restraint in the light of the principal award.

But why, one may ask, should we attempt to formulate for ourselves any measure of compensatory damages in a case such as the one before us since the law makes the conscience of this court, on appeal the arbiter to determine the issue of excessiveness, and declares that we may not disturb the verdict unless it is so grossly excessive as to convince us, to the extent that it shocks our conscience, that it was motivated by passion, prejudice, sympathy, corruption or other improper considerations ? The answer is obvious: without some fair and reasonable guide for the exercise of its conscience, an appellate court may stray into the uncharted field of emotionalism or the shifting sands of individual sensitivity, and thus unwittingly become the tool of sympathy or pity or prejudice rather than the servant of justice.

In addition to the necessity for some rational basis for approximate measurement of compensatory damages in a case of this kind, we should bear in mind certain basic principles that are applicable here. In the first place, it is to the plaintiff’s injuries alone that the compensatory verdict must relate; and where it includes prospective damages for permanent total disability, such damages must be reduced to their present cash value, i. e., to a principal sum that will produce a reasonable amount to provide the personal services and care needed by the injured person because of such disability, from the date of the verdict throughout his life expectancy.

“So far as a verdict is based upon the deprivation of future benefits, it will afford more than compensation if it be made up by aggregating the benefits without taking account of the earning power of the money that is presently to be awarded.” Chesapeake and Ohio Ry. Co. v. Kelly, 241 U. S. 485, 36 S. Ct. 630, 60 L. Ed. 1117.

So we held in Grimsley v. Atlantic Coast Line R. Co., 189 S. C. 251, 1 S. E. (2d) 157. So also the trial judge charged the jury in the case at bar; and such instruction is not challenged here. Corollary to the foregoing principle is recognition of the fact that the plaintiff alone is the beneficiary of such a cause of action, and that to him alone should compensation be directed. And, finally, the verdict is not to be founded upon sympathy for the plaintiff or related to or concerned with the wealth of the defendant.

Two matters apparent in the record here, we dismiss from our consideration as having no significant bearing on the issue of excessiveness. In many cases of permanent disability, total or partial, a more or less tangible element of damage is loss or diminution of earning capacity. That element. is absent here; but under the facts of this case its absence is, in our opinion, wholly immaterial. Also, as stated in the leading opinion, the plaintiff married subsequent to the trial and, about two years after the trial, without any ill effects to herself, gave birth to a normal child. It may be argued that this happy circumstance tended to alleviate the plaintiff’s mental anguish resulting from her injuries; but, however that may be, we do not take it into account in our scrutiny of the verdict, for the simple reason that it was not within the jury’s knowledge or within the scope of its inquiry.

It is to be noted that the verdict was for compensatory damages only, and was in the amount of $780,000.00. That by consent, or least without objection preserved here, the jury saw fit to apportion it between two of the defendants, charging Cherokee with payment of $468,000.00 of it and Ford with payment of $312,000.00, is wholly irrelevant to the issue of its excessiveness. Equally irrelevant to that issue is the trial judge’s order granting Ford’s motion for judgment n. o. v. For it is to the total amount of compensatory damages awarded by the jury that we must look in our endeavor to determine the issue of excessiveness.

Consideration of this verdict in the light of the principleshereinabove discussed leads me to conclude that it violates them, and that we should set it aside, for the following reasons:

1. It is grossly excessive in amount, bearing no reasonable relation to the plaintiff’s actual damage measurable in terms of money. As pointed out in Cherokee’s brief, $780,000.00 invested at six percent would yield an annual income of $46,800.00, a sum more than sufficient to provide the plaintiff each year with all of the necessities and comforts of life, including medical and nursing care, that so far as the record indicates can be purchased in the interest of her physical and material wellbeing. Indeed, $600,000.00 invested at four per cent, which was about the average rate of interest payable on obligations of the government of the United States at the time when the verdict was rendered, would yield annually an income of $24,000.00, an amount that would appear amply sufficient for such purposes even under our presently inflated economy. Nor can we justify a verdict grossly excessive under present economic conditions by assuming that during the years to come our economy may be more inflationary than it is now. Such assumption would be manifestly speculative, Armentrout v. Virginian Ry. Co. (D. C. S. D. W. Va. 1947), 72 F. Supp. 997, rev. on other grounds (C. A. 4th), 166 F. (2d) 400, 4 A. L. R. (2d) 1064; Hodkinson v. Parker (S. D. 1944), 70 S. D. 272, 16 N. W. (2d) 924.

2. Assuming such reasonable investment of the proceeds of such verdict, the whole principal would remain intact at the time of the plaintiff’s death, whether that be at the end of one year or of fifty years, and would thereupon pass by will or descent to a person or persons having no interest in the cause of action that gave rise to the verdict, and for whose benefit the verdict was therefore not intended.

3. Its size convincingly suggests that the verdict was the product of sympathy for the plaintiff and prejudice against the corporate defendants because of their wealth, — a sympathy and a prejudice doubtless engendered, or at least invited, by her counsel’s closing argument to the jury, wherein he: appealed to their friendship for the plaintiff; declared that construction companies “have a lot of money” and that he was not trying to “put a lump in anybody’s throat”, but was trying to “take a lump out of somebody’s pocket that can afford it”; declared that there was no alliance between the plaintiff and the defendant Blackmon (who was the driver of the automobile that collided with the one in which the plaintiff was riding, and whose motion for a directed verdict had not been opposed by her counsel), and that the only alliance in the case was that of “the have against the have-nots”; and urged for their consideration that the defendant Ford Motor Company makes “ten million dollars worth of automobiles a day.” (It is to be noted here that before sending the case to the jury the trial judge had denied Cherokee’s motion for direction of verdict in its favor as to punitive damages, and had granted Ford’s similar motion. The foregoing comments on counsel’s remarks are therefore made not with regard to their propriety or impropriety in connection with the issue of punitive damages, but solely by way of pointing out the obvious influence of such argument upon the jury’s determination of actual damages, the verdict being for such damages alone.)

I find myself unable to agree that the judgment in favor of Ford should be reversed and a new trial ordered as to it. Such holding can be justified only upon the existence of evidence from which it may reasonably be inferred that in designing its 1949 model with a gearshift lever having at its end a white, instead of black, plastic knob, Ford was guilty of negligence endangering the safety of the occupants of the automobile because after thirteen years of use exposed to sunlight the white plastic would be more likely to shatter than a black one upon receiving a sudden violent blow. In my opinion such inference is without evidentiary support. Rather, as it seems to me, the onfy reasonable inference from all of the evidence in that regard is that the knob was designed not as “a needed safety device”, but simply as a handhold for convenience in shifting gears, and I find nothing in the evidence from which it may reasonably be inferred that in 1949 such design constituted actionable negligence. In my opinion Ford’s motion for judgment n. o. v. was properly granted.

I would affirm as to Ford and reverse and remand for a new trial as to Cherokee.