Caylor v. Atchison, Topeka & Santa Fe Railway Co.

374 P.2d 53, 190 Kan. 261, 1962 Kan. LEXIS 384

Opinions

The opinion of the court was delivered by

Schroeder, J.:

This case involves trial errors in a damage action for personal injuries sustained by the plaintiff in an automobile accident.'

The questions presented are (1) whether the trial court erred in its failure to declare a mistrial after the plaintiff (appellee) in his own testimony injected the subject of appellants’ insurance, and in failing to admonish the jury by instruction or otherwise to disregard such testimony, and (2) whether the trial court erred in permitting the appellee’s counsel, in closing argument, to display a chart itemizing damages for future pain and suffering, and permanent disability on a mathematical formula basis.

The appeal was first heard in December, 1961, and on January 20, 1962, our opinion affirming the judgment of the lower court was filed. (Caylor v. Atchison, T. & S. F. Rly. Co., 189 Kan. 210, 368 P. 2d 281.)

A rehearing was granted and the case was reargued at the June, 1962, session.

Upon further consideration of the case, the court is convinced that the former decision is incorrect as to the mathematical formula argument (question No. 2 above). As to that portion of the opinion filed it should be and is hereby withdrawn, vacated and set aside. The decision of the court on the insurance feature (question No. 1 above) and the opinion thereon is in all respects affirmed.

Reference is made to the former opinion for the facts and general discussion on the use of the “per diem” argument to the jury concerning the allowance of damages for future pain and suffering and permanent disability. (189 Kan., pp. 215 to 221.) This has been referred to as the mathematical formula argument or “formula technique.”

The most recent decisions from other jurisdictions on this point are also divided.

The Supreme Court of Illinois on March 23, 1962, in Caley v. Manicke, 24 Ill. 2d 390, 182 N. E. 2d 206, reversed the Appellate Division (Caley v. Manicke, 29 Ill. App. 2d 323, 173 N. E. 2d 209) holding the portions of a prepared chart reflecting a mathematical formula for pain and suffering to be improper. On the same date the Supreme Court of Illinois in Jensen v. Elgin, Joliet and Eastern Railway Company, 24 Ill. 2d 383, 182 N. E. 2d 211, on the authority of Caley v. Manicke, supra, held it to be reversible error for counsel to use a mathematical formula in his argument to the jury.

The Supreme Court of South Carolina on the 7th day of February, 1962, in Harper v. Bolton, 239 S. C. 541, 124 S. E. 2d 54, 59, held it reversible error to permit counsel to endorse on a blackboard his own personal opinion as to the per diem value of pain and suffering in final argument to the jury. The court adopted the reasoning in Appliance Company v. Harrington, [1959] 201 Va. 109, 109 S. E. 2d 126. In the opinion the South Carolina court said:

“In allowing counsel for the respondent to endorse on a blackboard his own opinion as to the per diem value of pain and suffering was to permit him to make an argument that had no foundation whatever in the evidence. Though wide latitude and freedom of counsel in arguments to the jury are and ought to be allowed, such arguments cannot be based on facts not in the record, or inferences based on or drawn from facts which are not even admissible in evidence.”

On January 24, 1962, the Appellate Court of Indiana in Evansville City Coach Lines, Inc. v. Atherton, 133 Ind. App. 304, 179 N. E. 2d 293, held the mathematical formula argument to be proper. (See, also, Kindler, etc. v. Edwards, [1956] 126 Ind. App. 261, 130 N. E. 2d 491.)

The Supreme Court of Montana on February 13, 1962, in Wyant v. Dunn, _ Mont. __, 368 P. 2d 917, held a mathematical argument for damages for the loss of love, affection and companionship in a wrongful death case on a per diem basis should be left within the sound discretion of the trial court.

In Evening Star Newspaper Company v. Gray, [Mun. C. A., D. C.] 179 A. 2d 377, it was held that the per diem argument and the use of a chart were permissible by plaintiff’s counsel.

Actually, it serves no purpose to enumerate the decisions in the various jurisdictions to determine what may be the numerical weight of authority. The scales of justice are not tipped by numerical balances.

In this jurisdiction there is no valid objection to counsel, in argument, telling the jury what, under the evidence, counsel considers a fair compensation for the injuries received. It is customary for counsel in argument to suggest a total monetary award for pain and suffering. This, however, is far less misleading than the mathematical computation of the value of pain and suffering — the display in argument of a formula — in which time units of life multiplied by price of pain per unit equals value. In mathematical terms it is a supposition multiplied by a variable which equals an unknown.

The rationale of the supporters of the per diem argument is that the jury must arrive at a total monetary value of the plaintiff’s pain and suffering, and since this is inexact, counsel should be allowed to suggest the parts which make up the whole for the guidance of the jury. The procedure starts with a supposition that the plaintiff will not only live to the expectancy shown on the mortality tables, but that the pain will prevail throughout life. Then follows an assumption that the pain may be valued in dollars per unit of life, be it the year, the month, the day, hour or minute. Next, that the value of each unit is equal — that is, the pain is constant, uniform and continuous. And presto, the mathematical magic and we arrive at the whole sum. Admitting the ingenuity, it is beyond credence that accuracy can be increased or the truth served by such alchemy. This is not supported by the weight of human experience. It is a clever syllogism from an erroneous premise. No credit whatever is given for the gradual elimination of pain, the accommodation to it and the distraction from it by the events, change in circumstances and by other unconnected illnesses and injuries to which in the normal course a person is subjected. And no credit is given for the variations in pain between different individuals or the impossibility of recognizing or of isolating fixed levels or plateaus of suffering.

The purpose of this technique is blatantly to achieve “the more adequate award,” a synonym to all but the naive for “the more than adequate award.”

The reasoning assigned by courts which disapprove the “formula technique” in arguing damages to a jury has been summarized in the former opinion. (189 Kan., pp. 218 and 219.) It is incorporated herein by reference and adopted as sound.

Pain and suffering is recognized in this state as a material element of damages on which recovery may be based. Damages for pain and suffering are unliquidated and indeterminate in character, and the assessment of unliquidated damages must rest in the sound discretion of the jury. In Domann v. Pence, 183 Kan. 135, 325 P. 2d 321, the subject was discussed in the following language:

“. . . Pain and suffering have no known dimensions, mathematical or financial. There is no exact relationship between money and physical or mental injury or suffering, and the various factors involved are not capable of proof in dollars and cents. For this very practical reason the only standard for evaluation is such amount as reasonable persons estimate to be fair compensation for the injuries suffered, and the law has entrusted the administration of this criterion to the impartial conscience and judgment of jurors, who may be expected to act reasonably, intelligently and in harmony with the evidence. . . .” (p. 141.)

In view of the above quoted language we think the discussion of the “per diem” argument in Caley v. Manicke, supra, by the Supreme Court of Illinois is particularly illuminating. It was there said:

“. . . While the question is a close one, as evidenced by the divergence of opinion on the matter, we feel that such technique transcends the bounds of proper argument.

“Those courts that have allowed counsel to use a formula and figures in argument generally do so because they feel (1) that a jury’s determination of reasonable compensation for pain and suffering is arrived at by ‘a blind guess’ and (2) that the jury needs to be guided by some reasonable and practical consideration. We do not take such a dim view of the jury’s reasoning processes.

“Pain and suffering has no commercial value to which a jury can refer in determining what monetary allowance should be given to a plaintiff for the pain and suffering he has experienced and is reasonably certain to experience in the future. This determination, like many others that a jury must make, is left to its conscience and judgment. While a jury cannot translate pain and suffering into monetary units with the precision that it would in converting feet into inches, we do not believe that its determination of reasonable compensation for pain and suffering can be characterized as a “blind guess.’ To reduce the aggregate into hours and minutes, and then multiply by the number of time units involved produces an illusion of certainty, but it is only an illusion, for there is no more precision in the one case than in the other. A determination reached by a subjective process which is easier to comprehend than to define and upon which just and wise men may not agree does not indicate that it is a ‘blind guess.’ The divergence of opinion among the many able jurists who have fully and thoroughly considered the very issue here presented illustrates the point.

“It begs the question to say that the jury needs to be guided by some reasonable and practical consideration. A formula by definition is a ‘conventional rule or method for doing something, especially when used, applied, or repeated without thought.’ (Webster’s New Twentieth Century Dictionary, 2 ed. (1958).) It would appear that a formula, rather than encouraging reasonable and practical consideration, would tend to discourage such consideration.

“Furthermore, even if the presentation of a formula and figures were permitted for purposes of illustration, the contention that the court’s instruction would dispel their use by the jury as evidence ignores human nature. (See Allendorf v. Elgin, Joliet and Eastern Railway Co., 8 Ill. 2d 164, 173, 133 N. E. 2d 288, 79 A. L. R. 2d 241.) Nor would the fact that opposing counsel could use his own formula and figures remedy the situation because this would only emphasize the improper argument and would further mislead the jury into relying on the formulae and figures rather than the actual evidence of damages.

“Jurors are as familiar with pain and suffering and with money as are counsel. We are of the opinion that an impartial jury which has been properly informed by the evidence and the court’s instructions will, by the exercise of its conscience and sound judgment, be better able to determine reasonable compensation than it would if it were subjected to expressions of counsels’ partisan conscience and judgment on the matter.”

Upon a premise similar to that above quoted from Domann v. Pence, supra, the Virginia Supreme Court in Appliance Company v. Harrington, supra, when confronted with the use of a mathematical formula to determine damages for pain and suffering set forth on a blackboard in argument to a jury, said:

“To permit plaintiffs’ counsel to suggest and argue to the jury an amount to be allowed for pain, suffering, mental anguish and disability calculated on a daily or other fixed basis, allows him to invade the province of the jury and to get before it what does not appear in the evidence. Since an expert witness would not be permitted to testify as to the market value of pain and suffering, which differs in individuals and the degree thereof may vary from day to day, certainly there is all the more reason for counsel not to do so. The estimates of counsel may tend to instill in the minds of the jurors impressions not founded on the evidence. Verdicts should be based on deductions drawn by the jury from the evidence presented and not the mere adoption of calculations submitted by counsel.

“We are of opinion that the use by plaintiff’s counsel of a mathematical formula setting forth on a blackboard the claim of pain, suffering, mental anguish, and the percentage of disability suggested by him on a per diem or other fixed basis, was speculation of counsel unsupported by evidence, amounting to his given testimony in his summation argument, and that it was improper and constituted error. . . .” (pp. 114, 115.)

In Crum v. Ward, 146 W. Va. 421, 122 S. E. 2d 18, the Supreme Court of West Virginia said:

“In our view, the mathematical formula argument is based wholly on speculation, or imaginary inferences, not supported by facts, in reality by supposed facts which could not be received in evidence if offered. No effort, perhaps, would succeed in pointing out the almost innumerable variables necessarily existing or involved in such speculation. For illustration, however, it may be suggested that any attempt to place a money value on pain for any definite unit of time is impossible of any sound basis, for no two persons, it is believed, bear the same sensitivity to pain. The severity or duration of pain, though resulting from the .same cause, varies as to different individuals so greatly that the most experienced and learned physician finds no method of measuring it, but, to a very large extent, must rely on representations of the patient. . . .”

In Henne v. Balick, 51 Del. 369, 146 A. 2d 394, the Supreme Court o£ Delaware said:

“It has long been the rule in this State and elsewhere that the determination of the amount of plaintiff’s damage for pain and suffering shall be determined by the trier of facts based upon the evidence submitted. This is so because any specific yardstick based upon the evidence presented is entirely lacking and courts generally do not favor the determination of damages based upon speculation or fancy. It is only in comparatively recent years that the use of a mathematical formula has been permitted in any of our courts for consideration by the jury in ascertaining the amount of plaintiff’s damage. . . . There is no testimony in this case — and none would have been received if offered — in support of these figures.

“. . . As we view this evidence, plaintiff was permitted by means of a blackboard demonstration of plaintiff’s counsel to put in the record evidence which he would not otherwise have been permitted to introduce. It seems to us that if such evidence is to be permitted, it would be equally logical to permit expert witnesses to testify before the jury as to the reasonableness of the figures submitted for pain and suffering. No one would deny that to permit such a procedure would not only be fantastic but would be casting aside entirely the rules of procedure long followed in this country and England of permitting a jury to determine the amount to which a plaintiff would be entitled as damage for pain and suffering or other unliquidated damage based solely upon the evidence submitted.

“. . . We are also clearly of the opinion that in many cases at least the purpose of such use is solely to introduce and keep before the jury figures out of all proportion to those which the jury would otherwise have had in mind, with the view of securing from the jury a verdict much larger than that warranted by the evidence.” (pp. 375, 376, 377.)

The point was considered by the Supreme Court of Missouri in Faught v. Washam, [1959], 329 S. W. 2d 588, and in rejecting the “formula technique,” it said:

“. . . Only within the past few years have resourceful and ingenious counsel developed the ‘trial techniques’ of appealing to the jury to follow a matematical formula in admeasuring damages for pain and suffering. . . .

“To us, the considerations advanced by the authorities disapproving the mathematical formula argument are more persuasive. Whatever may be the cold logic or academic theory of the matter, the ungilded reality is that such argument is calculated and designed to implant in the jurors’ minds definite figures and amounts not theretofore in the record (and which otherwise could not get into the record) and to influence the jurors to adopt those figures and amounts in evaluating pain and suffering and in admeasuring damages therefor. If an argument of this character is permissible and proper, it would be just as logical, and equally as fair, to permit expert witnesses’ to evaluate pain and suffering on a per diem or per hour basis- — -a revolutionary innovation which, so far as we are advised, not even the most ardent zealots of the mathematical formula technique have (as yet) proposed. . . . The contention of its advocates that the mathematical formula argument is nothing more than that and is not evidence and that the fancied danger of its being mistaken for or accepted as evidence is greatly magnified and exaggerated by the timorous is a contention sound and plausible without but hollow and specious within. . . .” (pp. 602, 603, 604.)

The foregoing considerations advanced by the authorities disapproving the mathematical formula argument are, to us, persuasive.

In our opinion the use by appellee’s counsel of a mathematical formula, setting forth on a blackboard the claim of future pain and suffering and permanent disability on a per diem or other fixed basis, in argument to the jury was speculation of counsel unsupported by evidence. It amounted to the giving of testimony by counsel in his summation argument. We therefore hold such argument was improper and constituted reversible error — prejudice is conclusively presumed as a matter of law and a new trial must be granted.

The facts in the instant case are a graphic example of the impact of the “per diem” argument made upon the jury. During their deliberation the jury requested that they be permitted to have and see in their jury room the chart used and referred to by counsel for the appellee in argument. It is readily apparent they viewed the chart as evidence.

The judgment of the lower court is reversed with directions to grant a new trial.