Goertz v. Chicago & North Western Railway Co.

KILEY, J., specially concurring.

In 1951 this court sustained a verdict for $185,000 in Smith v. Ill. Cent. R. Co., 343 Ill. App. 593 . Leave to appeal was denied. The plaintiff there had both legs amputated at mid thigh, had a comminuted fracture of the breast hone and a straightening of the normal curvature of the spine.

In 1957 in Hulke v. International Mfg. Co., 14 Ill.App.2d 5 , the Second District Appellate Court sustained a verdict for $300,000. There the injuries were the burning away of 80% of the skin and flesh of the plaintiff’s body so that his muscles were visible; the structures of both ears were destroyed; an “everting” of the lower eyelids; amputation of two fingers; the loss of function of the fingers, not amputated, and of both hands and the right elbow; and the damage by-burning to his lower legs so that he must wear braces on both feet.

In the instant case both legs Avere amputated ten inches below the groin and the left arm was amputated nine inches above the elboAV.

In view of the result in the Hulke case it seems unlikely that this court Avould disturb, as excessive, in 1958 a verdict for $300,000 in a case on all fours with the Smith case. But the injuries to Goertz are no less than those suffered by Smith, and the instant record justifies the inference that the pain and suffering of Goertz were and are and will be as bad as Smith’s. In the Smith case the implication is that about $75,000, of the $185,000 total, was the probable award for the element of pain and suffering and loss of the rights of man. Assuming a case on all fours with the Smith case today with a verdict for $300,000, and making due allowance for some increase in special damages in 1958 over 1951, an award for the intangible elements would amount to roughly $200,000. The allowance for that element implied in the instant Goertz verdict was $230,-000. But Smith had 45 years life expectancy and Goertz has an expectancy of 12 years.

It may be said that these comparisons do not settle the question of the excessiveness of the instant verdict because it may be that the verdict for the injured party with the longer life expectancy may not have been adequate. In fact plaintiff argues here that the instant verdict is inadequate. It might also be said that it is fruitless to search for any norm to measure compensation for intangible painful consequences of a wrongful injury. On the other hand there must be a norm, otherwise how can the rule state that a verdict may not be set aside as excessive unless it be “wholly unwarranted,” “palpably excessive” and so on. The very words used in the rule presuppose a norm. There is no evidence upon which the jury can decide because there is no evidence in any record itself which tells the jury how to go about deciding how much to allow for intangibles and therefore the range of the verdict would be limitless.

But everyone admits there must be a limit. It seems to me that all of the rules on this question are referred to reason. Thus I stand by the test we applied in the Smith case, at page 612, whether reasonable men might differ on the question of whether $230,000 is too great an allowance for the pain and suffering G-oertz has undergone and will undergo and for the deprivation of the privileges and enjoyments common to men in like circumstances.

The test is limited to the question of the fairness of the award for the intangibles, since there is evidence of plaintiff’s special and intangible injuries in the record and no controversy at the trial about them.

The operable rules are clear. The assessment of damages is the preeminent function of the jury. Kahn v. James Burton Co., 5 Ill.2d 614 , and their verdicts based on their assessments must not be set aside unless clearly the result of passion and prejudice. Barango v. Hedstrom Coal Co., 12 Ill.App.2d 118 . The purpose of the award of damages is to repair plaintiff’s injury or make him whole as nearly as that may be done by money. Harper and James, The Law of Torts, p. 1301. There appears to be no precise standard by which to accurately define compensation due to a person for the intangible consequences of wrongful injury. The answer is not to give “the sum which the plaintiff, or anyone else, would be willing to suffer the injury for.” Harper and James, ibid, p. 1322. Also the award should be measured by what is due the plaintiff and not by what the defendant is able to pay. (deck, Damages to Persons and Property, p. 155, 1955 Ed.)

The award of $230,000 for intangibles gives an average allowance of $19,000 a year, taking only the principal amount into account, to G-oertz over and above his special damages. A study of the Illinois cases, cases from other jurisdictions and federal cases cited in the briefs on the question of excessiveness shows an average allowance for pain and suffering of less than 50% of the total verdict. The relevant Illinois cases show an average allowance of about 40% of the total verdict. In the instant case the average allowed for pain and suffering was over 70%. In the Smith and Hulke cases the allowance for this element averaged out over their life expectancies to approximately $1,800 and $3,000 per year, respectively.

Applying the test adopted, in the light of the principles set forth and the considerations drawn from a comparison of the Smith, Hulke and the instant case, my opinion is that all reasonable men must agree with defendant’s contention that the verdict for the intangibles is excessive. My opinion is that reasonable men would agree that it would be clearly unjust to allow roughly the same amount to two men, one of whose life expectancy is nearly four times as long as the other, and clearly unfair to require defendant to pay plaintiff $230,000 over a period of 12 years when another defendant, for substantially the same intangibles, would be required to pay less to another defendant over a period almost four times as long.

The implied value of the intangibles under a $200,000 verdict is $130,000. This sum averaged over 12 years would give plaintiff about $10,833 annually. I cannot disagree with the amount of the remittitur and giving plaintiff the option of making a remittitur is better than an unconditional reversal and remandment.,.