Goodhart v. Pennsylvania Railroad ( 1896 )

Opinion by

Mr. Justice Williams,

The plaintiff received the injury complamed of while a passenger on one of the trains of the defendant company. The train was being moved in two sections. The first section, on which tbe plaintiff was riding, had stopped to repair a break in one of its air pipes, and had sent its flagman back to warn approaching trains. The.second section, having been misled by the signal displayed by an operator at a signal tower, came along at full speed, and its engineer failing to notice the flagman and His efforts to warn him of the position of the first section, the accident resulted and the plaintiff was thrown from his seat and injured. At the trial, but two questions were raised, first, was the accident, and the consequent injury to the plaintiff, due to the negligence of the employees of the defendant ? If so, then second, what was the proper measure of damages to be applied by the jury? It does not appear that any contest was made over the first of these questions. The only real ground for controversy was over the measure of damages, and the evidence should have been confined to the issues of fact that related to this controversy. The evidence in regard to the examination made by Dr. Morton was not directed to the extent of the plaintiff’s injuries but to the severity of the examination. Its evident object was to persuade the jury that the character of the examination and the conduct of Dr. Morton and his assistants were unnecessarily harsh and annoying, and were proper subjects to be considered in assessing the plaintiff’s damages. But it must be borne in mind that a claim was being made against the railroad company for damages based upon an alleged injury received in consequence of the accident already referred to. In order to determine intelligently the extent of its liability, it was important for the defendant to know the nature of the injury, and the extent to which the plaintiff was affected by it. This could only be known as the result of a medical examination made by competent and experienced physicians. Dr. Morton and his assistants were selected, as proper persons to make the examination, and advise the defendant company of their estimate of the plaintiff’s condition and its consequent liability. If, in the discharge of their professional duty to their employer, they went beyond what was reasonably necessary and employed methods and tests that were cruel, and such as the judgment of the medical profession does not approve, and thereby inflicted injury on the plaintiff, they are liable for their own trespass whether committed with malice or through ignorance. But rudeness and incivility in the manner in which the examination was conducted, if rudeness or incivility can be affirmed of anything that was said or done in that connection, could throw no light on the extent of the injury actually suffered by the plaintiff, and the evidence referred to in the first and second assignments of error should have been rejected.

The remaining sixteen assignments of error relate more or less directly to the single question the case presented, viz : the measure of damages; and can be most conveniently considered together. Damages for a personal injury consist of three principal items; first, the expenses to which the injured person is subjected by reason of the injury complained of; second, the inconvenience and suffering naturally resulting from it; third, the loss of earning power, if any, and whether temporary or permanent, consequent upon the character of the injury: Owens v. Peoples Pass. Railway Co., 155 Pa. 834. The expenses for which a plaintiff may recover must be such as have been actually paid, or such as in the judgment of the jury are reasonably necessary to be incurred. The plaintiff cannot recover for the nursing and attendance of the members of his own household, unless they are hired servants. The care of his wife and minor children in ministering to his needs involves the performance of the ordinary offices of affection, which is their duty; but it involves no legal liability on his part, and therefore affords no basis for a claim against a defendant for expenses incurred. A man may hire his own adult children to work for him in the same manner and with same effect that he may hire other persons, but in the absence of an express contract the law will not presume one, so long as the family relation continues. Pain and suffering are not capable of being exactly measured by an equivalent in money, and we have repeatedly said that they have no marketprice. The question in any given case is not what it would cost to hire some one to undergo the measure of pain alleged to have been suffered by the plaintiff, but what under all the circumstances should be allowed the plaintiff in addition to the other items of damage to which he is entitled, in consideration of suffering necessarily endured: Baker v. Pennsylvania Company, 142 Pa. 503. This should not be estimated by a sentimental or fanciful standard, but in a reasonable manner, as it is wholly additional to the pecuniary compensation afforded by the first and third items that enter into the amount of the verdict in such cases. By way of illustration, let us assume that a plaintiff has been wholly disabled from labor for a period of twenty days in consequence of an injury resulting from the negligence of another. This lost time is capable of exact compensation. It will require so much money as the injured man might have reasonably earned in the same time by the pursuit of his ordinary calling. But let us further assume that these days of enforced idleness have been days of severe bodily suffering. The question then presented for the consideration of the jury would be, what is it reasonable to add to the value of the lost time in view of the fact that the days were filled with pain instead of being devoted to labor? Some allowance has been held to be proper; but in answer to the question “ how much ? ” the only reply yet made is that it should be reasonable in amount. Pain cannot be measured in money. It is a circumstance however that may be taken into the account in fixing the allowance that should be made to an injured party by way of damages. An instruction that leaves the jury to regard it as an independent item of damages to be compensated by a sum of money that may be regarded as a pecuniary equivalent is not only inexact, but it is erroneous. The word “compensation,” in the phrase, “compensation for pain and suffering,” is not to be understood as meaning price, or value, but as describing an allowance looking towards recompense for, or made because of, the suffering consequent upon the injury. In computing the damages sustained by an injured person therefore, the calculation may include not only the loss of time, and loss of earning power, but, in a proper case, an allowance because of suffering. The third item, the loss of earning power, is not always easy of calculation. It involves an inquiry into the value of the labor, physical or intellectual, of the person injured before the accident happened to him, and the ability of the same person to earn money by labor physical or intellectual after the injury was received.

Profits derived from an investment or the management of a business enterprise are not earnings. The deduction from such profits of the legal rate of interest on the money employed does not give to the balance of the profits the character of earnings. The word “earnings” means the fruit or reward of labor, the price of services performed: Anderson’s Law Dictionary, 890. Profits represent the net gain made from an investment or from the prosecution of some business after the payment of all expenses incurred. The net gain depends largely on other circumstances than the earning capacity of the persons managing the business. The size and location of the town selected, the character of the commodities dealt in, the degree of competition encountered, the measure of prosperity enjoyed by the community, may make an enterprise a decided success, which, under less favorable circumstances, in the hands of the same persons, might turn out a failure. The profits of a business with which one is connected cannot therefore be made use of as a measure of his earning power. Such evidence may tend to show the possession of business qualities but it does not fix their value. Its admission for that purpose was error. It was also error to treat this subject of the value of earning power as one to be settled by expert testimony. An expert in banking or merchandising might form an opinion about what a man possessing given business qualifications ought to be able to earn, but this is not the' question the jury is to determine. They are interested only in knowing what he did actually earn, or what his services were reasonably worth, prior to the time of his injury. In settling this question they should consider not only his past earnings, or the fair value of services such' as he was able to render, but his age, state of health, business habits and manner of living: McHugh v. Schlosser et al., 159 Pa. 480. The basis on which this calculation must rest is not the possibility, as judged of by the expert witness, but the cold, commonplace facts as proved by those who knew them. It does not follow, as a necessary conclusion, that the services of the plaintiff were worth no more at the time of his injury than the $80.00 per month he was receiving from the company in whose service he was, but the fact that he accepted service at that price was an important one, and was persuasive though not conclusive evidence that the price was considered by himself a fair one.

We think the twelfth assignment also points out a substantial error. The plaintiff was hurt on the 20th day of September, 1898. In May, 1894, he was appointed postmaster at Lewistown, Pa., at a salary which leaves him a net balance of $540 per year after the payment of all expenses. He is still holding the office and in receipt of the salary. Notwithstanding tins fact, the learned judge said to the jury: “It seems to the court, and we do not understand that it is denied by the defendant,, that since the accident, he has been totally disabled and utterly unable to do anything.” For eighteen months before this instruction was given the plaintiff had been receiving the salary attached to the office of postmaster at Lewistown and had been giving sufficient attention to the duties of the office to see that they were properly performed by his clerks and deputies. In other words, he had been earning $540 per year and was still earning it at the time the trial took place. Another subject requires consideration. The verdict rendered by the jury gives the calculation upon which the enormous sum awarded to the plaintiff was based. From this, it appears that the sum of $19,526.50 was given as the cost of an annuity of $1,750 per annum for nineteen years. This calculation assumes 1st, that the plaintiff’s earning power was nearly twice as great as he had himself offered it for to the company, whose president and manager he was. It assumes, 2d, that he had a reasonable expectation of life for nineteen years, being at the time of the trial about fifty-three years old. It assumes, 8d, that lfis earning power instead of steadily deureasing with increasing years would hold up at its maximum to the very end of life. It assumes M the 4th place that he is untitled to recover not only the present worth of Ms future earnings as the jury has estimated them, but a sufficient sum to unable him to go out into the market and purchase an annuity now, equal to his estimated earnings.

The first, second and tMrd of these are assumptions of fact. The fourth is an assumption of law and is clearly wrong. When future payments are to be anticipated and capitalized in a verdict, the plaintiff is entitled only to their present worth. This is the exact equivalent of the anticipated sums.

From what has been now said, it follows that substantially .all of the assignments of error are sustained. The judgment is reversed and a venire facias de novo awarded.

Sterrett, O. J., dissents.