Halloran v. New England Telephone & Telegraph Co.

115 A. 143, 95 Vt. 273, 18 A.L.R. 554, 1921 Vt. LEXIS 211

• Court: Supreme Court of Vermont
• Decided: October 4, 1921
• Status: Published

Opinions

Powers, J.

The plaintiff secured a verdict in an action predicated upon the defendant’s negligence, and the latter seeks a reyers.al of the judgment rendered thereon. Only three of the exceptions saved at the trial are briefed by the defendant, and these oníy are considered.

[1] 1. The plaintiff’s evidence tended to show that at and before'the time of the accident, she was suffering .from a malignant disease of a private nature, which required a prompt surgical operation if a fatal result was to be averted; that the accident had resulted in a serious and incurable organic disease of the heart, which precluded the operation referred to; that through her physician, she learned these facts; and that she suffered much mental anxiety and distress on account of the same. The defendant excepted to the admission of the evidence tending to show such mental anguish, and to its being allowed as an element of the plaintiff’s damages.

As we have seen, the physical condition which required an operation existed at the time of the accident and was not caused by it; but the physical condition which made it impossible to perform the operation was a direct result of the accident. The mental distress which the plaintiff was allowed to show was not on account of the doctor’s disclosure -of her fatal malady, but from the 'knowledge that the condition of her heart would not admit of an operation which would otherwise be an available cure. This anxiety she- would have been free from but for the accident. It was, then, a natural and proximate result of the physical injury sustained through the defendant’s negligence, and a proper element of recoverable damages. Rogers v. Bigelow, 90 Vt. 41, 96 Atl. 417; Nichols v. Central Vermont Ry. Co., 94 Vt. 14, 109 Atl. 905, 12 A. L. R. 333.

It is under this rule that fear of hydrophobia (Godeau v. Blood, 52 Vt. 251, 36 A. L. R. 751), apprehension of insanity (Walker v. Boston & Maine R. R., 71 N. H. 271, 51 Atl. 918), dread of blood poisoning (Butts v. National Exchange Bank, 99 Mo. App. 168, 72 S. W. 1083), fear of giving birth to a deformed child (Prescott v. Robinson, 74 N. H. 460, 69 Atl. 522, 17 L. R. A. [N. S.] 594, 124 A. S. R. 987), dread of death from swallowing gláss (Watson v. Augusta Brewing Co., 124 Ga. 121, 52 S. E. 152, 1 L. R. A. [N. S.] 1178, 110 A. S. R. 157), are admitted as proper elements of damage. It is to be observed that mere regret, disappointment, or vexation are not mental suffering within the meaning of the rule (Bovee v. Danville, 53 Vt. 183), but fear, worry, and apprehension are typical sorts of it. Egan v. Middlesex, etc., R. Co. (D. C.) 212 Fed. 562. And it is very properly held that the anxiety must be natural and not speculative (Rogers V. Bigelow, supra), real and not fanciful (Watson v. Augusta Brewing Co., supra).

[2] 2. In the course' of his argument, counsel for the plaintiff called attention to the fact that none of the defendant’s officers or servants had appeared as witnesses, the obvious purpose being to have the jury infer that, if produced, these persons would have given evidence unfavorable to the defendant. To this line of argument the defendant objected, and asked for an exception. The court ruled, in effect, that the argument was improper, saying, “I don’t believe you better pursue that line of argument, and you may have an exception. ’ ’ The transcript, to which controlling reference is made', shows that an exception was allowed to the plaintiff. The defendant insists that this is a mistake, ahd that in fact the exception was allowed to the defendant; and it calls attention to certain circumstances indicating this. But we are bound by the plain terms of the record, and will not allow it to be falsified in this Court. Right or wrong, it is the sole and only basis for appellate action.

[3] 3. Counsel for the plaintiff was allowed to urge in argument, that in assessing the damages the jury should consider the present impaired purchasing power of the dollar; and the court instructed them that they might consider it. The defendant excepted. There is no claim that there was any evidence in the case regarding this matter.

The result sought by the law in assessing damages in such eases is compensation- — the ascertainment of such a sum as will compensate the plaintiff — so far as a money payment can- — for the injury. Necessarily, damages are to be expressed in terms of money. And while money is the standard of value by which the worth of all other property is to be measured, and while, in theory, its value remains constant and unfluctuating, and while it must be admitted that really it is prices which rise and fall amid changing economic conditions, yet,, after all, in a very real and a practical sense money itself is a shifting standard, varying in value according to the changes in its purchasing power. As a medium of exchange, its value appreciates or depreciates according to the rise and fall in commodity prices. So it is that, at least so far as those elements of damages properly classed as pecuniary losses — like loss of time, loss of earning power, expenses and the like — are concerned, it is proper for the jury to take into consideration the fact, known to everybody, that the purchasing power of money is at present seriously impaired. And it is so held by the courts. Washington, etc., R. Co. v. LaFourcade, 48 App. D. C. 364; Louisville & N. R. Co. v. Scott’s Admr., 188 Ky. 99, 220 S. W. 1066. The question has more often arisen in cases involving the question of excessive verdicts. But the principle is the same, and the decisions are in accord. Noyes v. Des Moines Club, 186 Ia. 378, 170 N. W. 461, 3 A. L. R. 605, and note; Bowes v. Public Service R. Co. (N. J.) 110 Atl. 699; Melish v. New York Con. R. Co., 108 Misc. Rep. 291, 178 N. Y. Supp. 228; Hance v. United Rys. Co. of St. Louis (Mo. App.) 223 S. W. 123; Duffy v. Kansas City Rys. Co. (Mo. App.) 217 S. W. 883; Hurst v. Chicago, B. & Q. R. Co., 280 Mo. 566, 219 S. W. 566, 10 A. L. R. 174, and note; McCready v. Fournier (Wash.) 194 Pac. 398; Standard Oil Co. v. Titus, 187 Ky. 560, 219 S. W. 1077; Illinois Cent. R. Co. v. Johnston, 205 Ala. 1, 87 So. 866. Whether any different rule should be applied to the elements of damage other than pecuniary losses, like physical suffering and mental distress, is a question neither raised nor considered.

Judgment affirmed.