Klinge v. Southern Pac. Co.

Our State Constitution, art. 8, § 9, provides that:

"From all final judgments of the district courts, there shall be a right of appeal to the Supreme Court. The appeal shall be upon the record made in the court below and under such regulations as may be provided by law."

The law is well settled in this jurisdiction that while an appeal may not be had from the order granting a new trial, because such an order is not a final judgment, yet, when an appeal is taken from a final judgment, the order granting a new trial may be reviewed. Hirabelli v. Daniels, 44 Utah 88,138 P. 1172. The dismissal of this action without prejudice was a final judgment. The cause was put out of court. If, after the new trial was granted, the case had again proceeded to trial in that court, and if upon a retrial plaintiff had secured a larger judgment, the defendant would have a right upon an appeal from the second judgment to a review of the proceedings had on the first trial. Defendant having such a right, it follows that the same could not be cut off by dismissing the action pending and commencing a new action for the same cause. It is a familiar rule of law that one may not accomplish indirectly that which he may not accomplish directly. If, as the cases in this jurisdiction hold, the defendant has a right to review an order granting a new trial in the event the same action is again prosecuted in the same court, it is difficult to perceive upon what principle of law such right may be defeated by dismissing such action without prejudice and beginning a new action involving the same parties and the same subject-matter in the same or a different court. Parties to a judgment properly rendered acquire vested rights therein. They are entitled to their day in court when such rights are brought in question, and, when either claims that the trial court has improperly disturbed its or his rights in a judgment, it or he is entitled to have such matter reviewed by this court.

It is urged on behalf of the respondent that defendant, having prayed that plaintiff take nothing by his complaint and the action having been dismissed, has secured the judgment for which he prayed, and, therefore, may not be heard to complain. If the judgment of dismissal had been with prejudice, there would be merit to respondent's contention, because in such case the defendant would have received all that it prayed for. However, it may not be said that a judgment of dismissal without prejudice is the kind of judgment for which defendant prayed. Cases are cited by respondent in which it is held that, after a new trial is properly granted, plaintiff has the same right to dismiss the action as he had before the case was tried. The cases so holding are not in point where a new trial is improperly granted. Obviously if a judgment is vulnerable to attack, and is successfully attacked by setting it aside and granting a new trial, there can be no vested interest in a judgment so vacated. Appellant has a right to appeal from the judgment of the district court of Salt Lake county dismissing without prejudice plaintiff's action, and to have reviewed by this court in connection with such appeal the order granting a new trial.

Respondent further contends that a new trial was properly granted because (1) the court below improperly instructed the jury as to the law; and (2) the verdict rendered on the trial had in the state district court was so inadequate in amount as to indicate that the same was rendered under the influence of prejudice or passion. The instruction complained of reads as follows:

"In considering the element of loss in wages, if any, which the plaintiff may sustain in the future on account of the loss of his arm, you are instructed that it is proper to consider plaintiff's expectancy of life. You are further instructed, however, that such loss must be figured on the basis of the present value thereof; that is to say, the present value of a yearly income equivalent to the probable reduction of plaintiff's earnings. The most the plaintiff would be entitled to as compensation for the impairment or loss of future earning power would be, not the total amount in wages which he would probably earn during his life expectancy, but the value or equivalent if paid now in a lump sum by the defendant in advance instead of being earned and received in monthly installments during the remaining years of his life.

"You are further instructed that the legal rate of interest fixed by the law of this state is eight per cent, and in computing the present worth of money as recited in the foregoing paragraph of this instruction you may figure it on the basis of eight per cent per annum."

Plaintiff objected to the whole of the foregoing instruction and particularly to that portion thereof which permitted the jury to figure the earning power of money "on the basis of eight per cent per annum." It is the latter part of the instruction that respondent here urges was erroneous and prejudicial. He contends that the jury should have been permitted to determine the earning power of money without any suggestion by the court. In support of such contention, he cites, among others, the cases of Chesapeake O.R. Co. v. Kelly, 241 U.S. 485, 36 S. Ct. 630, 632,60 L. Ed. 1, 117, L.R.A. 1917F, 367; Gulf, C. S.F.R. Co. v. Moser,275 U.S. 133, 134, 48 S. Ct. 49, 72 L. Ed. 200, 203; and SouthernPacific Co. v. Klinge (C.C.A.) 65 F.2d 85. In the Kelly Case, the Supreme Court of the United States said:

"We do not mean to say that the discount should be at what is commonly called the `legal rate' of interest; that is, the rate limited by law, beyond which interest is prohibited. It may be that such rates are not obtainable upon investments on safe securities, at least, without the exercise of financial experience and skill in the administration of the fund; and it is evident that the compensation should be awarded upon a basis that does not call upon the beneficiaries to exercise such skill, for where this is necessarily employed, the interest return is in part earned by the investor rather than by the investment. This, however, is a matter that ordinarily may be adjusted by scaling the rate of interest to be adopted in computing the present value of the future benefits; it being a matter of common knowledge that, as a rule, the best and safest investments, and those which require the least care, yield only a moderate return."

The Moser Case, supra, in effect reaffirms the doctrine announced in the Kelly Case. The case of Southern Pacific Co. v. Klinge, supra, involves the same parties and the same subject-matter as are involved in the case under review. In that case the Tenth Circuit Court of Appeals said:

"Error is assigned because the trial court declined to charge the jury that their verdict should be computed on the assumption that money could safely be invested at eight per cent, the legal rate in Utah. The trial court was clearly right. The jury should determine from the evidence what interest could be fairly expected from safe investments which a person of ordinary prudence, but without particular financial experience or skill, could make in that locality. Chesapeake Ohio Ry. Co. v.Kelly, 241 U.S. 485, 36 S. Ct. 630, 60 L. Ed. 1117, L.R.A. 1917F, 367. Whether the statutory rate on judgments is even evidentiary might be questionable; but certainly it is not conclusive."

As will be seen from an examination of the cases cited in the dissenting opinion of Judge HARRIS there are a number of state courts and possibly some federal courts which hold that the legal rate of interest should be used in computing the present value of money to be awarded as damages in tort actions. It is not necessary in the instant case to discuss the merits of the cases so holding because this being an action brought under the Federal Employers' Liability Act (45 U.S.C.A. §§ 51-59), the decisions of the Supreme Court of the United States touching the law applicable to such actions as this are binding upon us. Gulf, C. S.F.R. Co. v. Moser, supra. The language of the Supreme Court of the United States in the Kelly Case, heretofore quoted, seems to clearly indicate that it may not be assumed that money may be safely invested at the legal rate of interest, and hence, as expressed by the Circuit Court of Appeals in this cause,

"The jury should determine from the evidence what interest could be fairly expected from safe investments which a person of ordinary prudence, but without particular financial experience or skill, could make in that locality."

If there were any evidence touching that question in the case before us for review, a proper instruction could be readily formulated. But in the trial in the state district court of the case in hand, no such evidence was offered or received. None of the federal cases cited aid us as to the proper instruction to be given under such circumstances. A jury cannot find from the evidence what rate of interest "could be fairly expected" when there is no evidence touching that question.

In the absence of such evidence, it would be idle to give an instruction such as that indicated by the Circuit Court of Appeals when this question was before it. It is fair to assume that when the Legislature fixed the legal rate of interest on money judgments or money due and owing, and in the absence of an agreement to the contrary, at 8 per cent per anuum, that such rate bears some relation to the interest that money can fairly be expected to bring. The courts have quite uniformly adopted that measure of damages in such actions as replevin. Sutherland on Damages, vol. 4 (4th Ed.) § 1144, p. 4312. While I readily accede to the doctrine announced by the Circuit Court of Appeals in the case of Southern Pac. Co. v. Klinge, supra, still, in the absence of proof as to what money may fairly be expected to earn, I can see no escape from the conclusion that the jury may, as stated in the instruction under review, use the legal rate of 8 per cent per annum as a basis of arriving at the reasonable earning power of money. In the absence of evidence tending to show that such a rate is greater than may fairly be expected, plaintiff has failed to show that he has been prejudiced by the instruction complained of.

As to the claim of respondent that the verdict is so inadequate as to justify the granting of a new trial on the ground that the jury was influenced by passion or prejudice, I concur in what is said with respect thereto in the dissenting opinion of Judge HARRIS. Respondent in his brief touching the claimed inadequacy of the verdict proceeds upon the assumption that his earning power has been totally destroyed by the loss of his arm. There is some evidence to that effect. However, it may not be said that the jury was bound to believe such evidence. It is a matter of common knowledge that many persons who have lost an arm are capable of and do earn a substantial income. The jurors saw the plaintiff and were at liberty to draw upon their own experiences and use their own judgment as to whether or not his earning power was totally destroyed, and, if not, what in their judgment he was probably capable of earning. 17 C.J. 903, 904.

In my opinion, the court below should be directed to reinstate the former judgment.

MOFFAT, J., being disqualified, did not participate herein.