Sherman v. Manufacturers Light & Heat Co. , 389 Pa. 61 ( 1957 )

Dissenting Opinion by

Me. Justice Musmanno:

The last sentence in the Majority Opinion is a portentuous one, namely: “We have considered, but deem it unnecessary to discuss, the other contentions advanced by plaintiff.” What are these other contentions, and why does the Majority deem it unnecessary to discuss them? As I survey the panorama of the law, one of those contentions is of superlative importance. Because of this Court’s failure to discuss this certain feature of the case, judges may continue to charge juries on a standard which does not represent realities and, as a consequence, many unjust verdicts may hover on the horizon of future lawsuits.

The plaintiff in his appeal specifically charged that the Trial Judge erred in instructing the jury that if they returned a verdict for the plaintiff, they should reduce the amount allowed for impairment of earning power by deducting from that sum an amount equivalent to 6%, interest accruable on the net sum. I do not say that the Trial Judge in this case, who is a very able, experienced and conscientious jurist, erred when he charged in the manner indicated, since he was duly following what was said by this Court in Windle v. Davis, 275 Pa. 23, 29, namely: “the interest must be computed at the lawful rate of six per cent.” A duty devolves on this Court, however, to overrule Windle v. Davis, and, in doing so, grant a new trial because the plaintiff was subjected to the outdated standard announced therein. We should retire Windle v. Davis because it proclaims a financial criterion which has long ago been repudiated on the Rialto. There was a time, of course, Avhen money Avas a very lively plant in a fertile soil. It only had to be Avatered with reasonable care and it would bloom with 6% and even higher rates of interest. In 1929 that plant suffered a blight from Avhich it never thoroughly recovered. To speak today of 6% on bank deposits and other guaranteed, safe investments is to indulge in day-dreaming. Today it takes exceeding financial skill or extraordinary luck to produce a 6% ipso facto return on a given investment, and it is contrary to all demonstrated fact to assume that the average plaintiff in a personal injuries case possesses unusual talents in financial divination. Nor is it in keeping with our concept of fair dealing to subject him to the law of chance in obtaining Avhat is his by operation of the laAV of the land.

I regard it as unfair, unjust, and inequitable to take from an injured man’s verdict an amount equivalent to 6 °/o when at most he might get only a return of 2 or 3% on his investment. Imposing the rate of interest laid down in the Windle case means actually taking from the injured man’s pocket at least 3% of the amount the laAV has awarded him. This 3% is not a tax Avhich goes to the government, it is not charity payable to a hospital, it represents an amount of money turned over to the defendant — the very person who has injured the plaintiff, crippled him, and inflicted on him pain, suffering, and agony. If this is justice, it has indeed taken a strange and enigmatic form.

This Court had the opportunity in this case, which it entirely ignored, to definitely declare what the law should be today on the matter of deductible interest in personal injury damage cases. I submit that this Court should have announced that whatever amount the jury is to award the plaintiff for prospective loss of future earnings should be translated into that amount which Avhen invested at the prevailing rate of interest (which is certainly not 6%), would equal at the end the total accumulation of all future losses resulting from impairment or complete destruction of earning power.

Another feature of the case Avhich the Majority considered, but did not deem necessary to discuss, was the Trial Court’s charge on taxes. The Trial Court instructed the jury: “. . . Of course he Avould only be entitled to reimbursement for his net earnings. I mean by that the amount of money he would have use of for himself and his family. Now we didn’t go into details here because most of you people are family people and you knoAV how much income tax you pay and how much is deducted from your pay envelope or your contribution you paid to Social Security. So you have a pretty good idea if a man is earning $3947 a year, has a wife and three children, even though there would be 10 per cent of that deducted by his employer he may get a refund. I don’t know. They didn’t go into figures on that and you Avill have to use your common sense on that but he wouldn’t be entitled to what he never would have gotten when you are figuring wages. He would only be entitled to his net loss of wages, that money that he would have for the use of his family and himself as distinguished from money that he earned but he never got hold of . . .”

To suggest to the jury deduction for income tax and social security payments is clearly erroneous. What a man receives in a verdict for a broken leg, a crippled hand, a smashed pelvis, or any other damage done to his physical machine, which is the very generating power for wages, income, and profit, is clearly not taxable. A verdict is not income, it is replacement of flesh, bone and blood; it is giving back to a man what was his; it is restoring to the safe deposit of his being the wealth of health, energy, and motive power taken from him by the person required to pay the verdict.

If this Court had granted a new trial for the reasons just discussed, accompanying the decision with appropriate instructions, judges throughout the State would have been grateful for the clarification so dire-fully needed. As matters stand now, should judges charge that juries should whittle down verdicts by 6%. Should they direct that juries reduce verdicts on account of income tax and social security? Should they charge on take-home pay? They cannot possibly know with definitive accuracy about these things because this Court, while it has considered these vital matters, had decided it unnecessary to discuss them.

The Majority does discuss, however, the amount of the verdict and has concluded that the amount originally decided by the jury, less 6% interest, less income tax and social security payments, adequately compensates the plaintiff for his injuries.

What are the facts in this case?

Robert E. Sherman, the plaintiff, was injured in an automobile accident, legal responsibility for which was fixed against the defendant Manufacturers Light and Heat Company by a jury trial which resulted in a verdiet for the plaintiff in the sum of $22,000. At the time of the accident the plaintiff was 27 years of age, weighed 175 pounds, stood 8 feet in height, worked as a railway motorman, enjoyed excellent health, and participated in vigorous athletics. Since the mishap which overtook him on February 12, 1952, he has lost 45 pounds in weight and has deteriorated into semi-invalidism, spending time in hospitals and undergoing continuing medical treatment. Unable to return to his former employment he tried to earn a living at four successive different jobs but in each instance could not physically carry on. Dr. William S. McCabe testified that as a result of the accident the plaintiff is unable to lift his right leg (“cannot get it off the ground”), that he has a %" atrophy in the right leg 5" below the knee and a 1" atrophy of the same leg 5" above the knee; that the muscles have withered away at these points; that there is an impairment to the nerve supply in his right leg; that the quadricep groups of muscles in the leg “have been knocked out”; and that he experiences excruciating pains because of damage to the sciatic nerve. A myelogram performed in October, 1952 revealed that the plaintiff suffered from a herniated intervertebral disc, between the fourth and fifth lumbar vertebrae. He was hospitalized and underwent surgery for an attempted correction of this condition. Discharged from the hospital on January 31, 1953, he was re-hospitalized in April, 1953 because of a threatened nervous breakdown. On May 13, 1955, another myelogram revealed, according to Dr. McCabe, “a definite defect in the right hand anterior spinal canal region at L-4 which must be presumed to be a recurrent ruptured disc deformity. There are probably adhesions also at the tip of the caudal sac.” Although this deformity could possibly respond to further surgery, another operation has not been decided upon because the patient has not, it is averred, yet entirely readjusted from the results of the first operation.

The record is replete with references to intense pain suffered by the plaintiff. Dr. McCabe testified that the plaintiff “has got to learn to live with his pain now.” Describing his routine at home, the plaintiff himself testified: “At home I have to use heat and no walking around or doing anything at all. I have to lie down all the time. Practically the only time I am allowed out on my feet is in the afternoon, he said, ‘If you feel like it, if you like to go for a little walk, take a walk up to the corner,’ but he said, ‘Mostly stay on your back.’ And I also have to use heat at home plus he gives me medication to help kill the pain a little bit so you don’t feel like you are going to blow your top every time you go to move.”

Dr. Philip A. Faix testified: “Q. Does he have pain? A. Marked pain. Q. Will you describe that pain? A. And we have to give him fairly marked opiates to give him any relief. Generally, we have tried several things, but we have been giving him empirin with codeine, a grain and a half and he usually takes four, five to six of them a day and that is a fairly good indication of the severity of his discomfort and pain. Q. I believe you mentioned some pain in the right leg? ... A. The pain in the right leg here comes from the distribution of the sciatic nerve which Doctor McCabe has so beautifully described and it has been persistent and severe.”

He said further: “We have established atrophy in his leg, established areas of numbness, minute reflexes in his achilles tendons and without any doubt in my experience, because we have referred to the short experience of the past and I think mine is fairly long, this is one of the most severe spastic backs that I have ever seen.”

Although the plaintiff has followed the recommendations of his doctor he has not experienced relief: “Q. Mr. Sherman, have you faithfully followed all the treatments that the doctor has told you to do? A. Yes, I have. Q. Have you taken all the medicine that they have prescribed for you? A. Yes, I have. Q. Are you able to stand and to sit since February 12, 1952, as you were able to sit or stand prior to the date of the accident? A. No. Q. Can you sit for any length of time? A. No. Q. Do you get irritated? A. Yes, I do.”

It was the opinion of Dr. Faix that the plaintiff would never in the future be able to do any strenuous work: “Q. Is it your opinion that he will be able in the future to do any strenuous work? A. With the present findings I don’t believe that he could do any type of work that would require a great deal of physical activity. Q. Well, would he be able to do any work that requires bending? A. No. Q. Would he be able to do any work that requires a lot of standing? A. No. Q. Would he be able to do any work that requires a lot of sitting? A. No. Q. Would he be able to do any work that requires walking? A. No.”

The plaintiff himself testified: “Q. Are you able to do any kind of work? A. No, I am not.”

On the basis of these excerpts from the transcript of testimony, aside from other evidence in the case, it would appear that the plaintiff could well contend that he was permanently and totally disabled for any employment which required physical exertion.

In his charge to the jury, the learned Trial Judge, while discussing the item of damages, described the plaintiff’s loss of future earning power as “partial loss.” In explanation of the term he said: “Now I say partial because he has had some earning power during the period up to date, $2000, but it covered a period of three years. So he would have a partial loss of future earning power based on his past record of earning power, his ability to earn.”

The fact that an injured person has been able to earn some money between the date his injuries occurred and the date of the trial is not an inflexible standard of proof of reduced future earning power. Future earning power is to be determined from the evidence as to what the plaintiff’s condition will be after the trial. (Saganovich v. Hachikian: 348 Pa. 313). Since the defendant contended that the plaintiff’s physical troubles stemmed from tuberculosis of the spine, unconnected with trauma, and that he would be able to resume a normal occupation in two or three years, it thus became a question of fact for the jury whether the plaintiff’s disability was or was not the result of the accident for which the defendant was responsible, and, if so, for what period of time his disablement would continue. The plaintiff maintains in this appeal that the Trial Judge in his charge to the jury assumed as established fact that the plaintiff was only partially or temporarily disabled and, with that erroneous assumption, the plaintiff was thus denied the expression of his full claim which was for damages based on total and permanent disability.

The Court’s charge Avas a lengthy one and Avithout question the Trial Judge conscientiously endeavored to cover all features of the case in a thoroughly impartial manner. HoAvever, when a trial judge essays to present with some particularity the respective merits of the contending parties, each side is entitled to be dressed in the best verbal attire it has worn during the trial. The plaintiff here insisted from the outset that, from the point of remunerative work, his life had no horizon, and that, occupationally, a total eclipse had set in for him. In support of this bleak prospect he presented medical testimony for the jury’s evaluation. He himself testified at length on his hopeless future, A plaintiff’s estimate of his physical condition is entitled to respectful and weighty consideration because certainly no one can know better than he how he feels, and whether or not he is in pain.

Although the able Trial Judge did tell the jury that the plaintiff claimed he had a condition which could not be corrected and that there was the possibility that with the passage of time his condition would worsen, we believe that he inadvertently conveyed the impression that it Avas his conclusion the plaintiff only proved a partial reduction in earning power and that, therefore, the jury should assess his damages on a partial reduction basis.

The Majority Opinion states that it is “extremely doubtful whether plaintiff could fairly and reasonably contend under his own evidence . . . that his disability was total and permanent in the light of the facts,” and then enumerates the facts to justify this assertion. I Avill cite them as given in the Majority Opinion, with my comment immediately following:

(1) The Majority states the plaintiff “had worked on numerous occasions after the accident.” ' This does not prove that the plaintiff is not now totally and permanently disabled. It only shows that the plaintiff honestly tried to Avork time after time. He tried four successive jobs and had to leave each one of them because of his disability!

(2) The plaintiff earned $2,000 prior to the trial. A total of $2,000 for three years for a man who was earning $3,000 per year prior to his accident is indication in itself of grave physical disability, Avhen Ave know that the plaintiff made every effort to Avork.

(3) The Majority states that the plaintiff’s “own doctor testified for defendant that he could do ordinary work in tAVO or three years.” The doctor referred to is Hr. Steele Avho treated the plaintiff for several months in the year 1953 and then did not see the plaintiff for four years! Even so, when he was asked at the trial when he expected the plaintiff could return to an ordinary job, he did not reply definitively and with assurance, as the Majority Opinion seeks to convey he did. He replied as follows: “Well, that is pretty hard to prognosticate because you can’t hnow what turn these things are going to tahe at all times but I don’t see any reason why in two or three years he should not be able to.” (Emphasis supplied).

(4) The plaintiff’s doctor stated: “I don’t believe that he could do any type of work that would require a great deal of physical activity.” How does the Majority come to the conclusion from this statement— that the doctor believes the plaintiff can not do any type of work which requires a great deal of physical activity — proves the plaintiff’s disability is not total and permanent?

It will be recalled that I quoted earlier in this Dissenting Opinion that the doctor testified that the plaintiff would not be able to do any work which required bending, or much standing, sitting, or walking. If that is not evidence of permanent and total disability, we need another definition of that term.

The Majority Opinion makes other assertions which I have considered but which I do not deem necessary to discuss — since they answer themselves.

Mr. Justice Arnold concurs in this Dissent.