I dissent.
Although I agree that there was no prejudicial error on the issue of liability, it is my opinion that the award of $134,000 for pain and suffering is so excessive as to indicate that it was prompted by passion, prejudice, whim, or caprice.1
Before the accident plaintiff was employed as a file clerk *510at a salary of $375 a month. At the time of the trial she had returned to her job at the same salary and her foot had healed sufficiently for her to walk. At the time of the accident she was 42 years old with a life expectancy of 34.9 years.
During closing argument plaintiff’s counsel summarized the evidence relevant to past and possible future damages and proposed a specific amount for each item. His total of $187,903.75 was the exact amount awarded by the jury.
His proposed amounts were as follows:
Doctor and Hospital Bills..........$10,330.50
Drugs and other medical expenses
stipulated to in the amount of.... 2,273.25
Loss of earnings from time of
accident to time of trial.......... 5,500.00 $ 18,103.75
Future Medical Expenses:
$2,000 per year for next ten years 20,000.00 $200 per year for the 24 years
thereafter .................... 4,800.00
Drugs for 34 years............... 1,000.00 25,800.00
43,903.75
Possible future loss of earnings..... 10,000.00
Total Pecuniary Loss.............. 53,903.75
Pain and Suffering:
From time of accident to time of
trial (660 days) @ $100 a day.... 66,000.00
For the remainder of her life
(34 years) @ $2,000 a year....... 68,000.00 134,000.00
Total proposed by counsel.......... $187,903.75
The jury and the trial court have broad discretion in determining the damages in a personal injury case. (Johnston v. Long, 30 Cal.2d 54, 76 [181 P.2d 645] ; Roedder v. Rowley, 28 Cal.2d 820, 823 [172 P.2d 353].) A reviewing court, however, has responsibilities not only to the litigants in an action but to future litigants and must reverse or remit when a jury awards either inadequate or excessive damages. (E.g., Clifford v. Ruocco, 39 Cal.2d 327, 329 [246 P.2d 651] [inadequate award]; Torr v. United Railroads, 187 Cal. 505, 509 [202 P. 671] [inadequate award] ; Chinnis v. Pomona Pump Co., 36 Cal.App.2d 633, 642-643 [98 P.2d 560] [inadequate award] ; Bellman v. San Francisco H. S. Dist., 11 Cal.2d 576, 588 [81 P.2d 894] [excessive award]; Mondine v. Sarlin, 11 Cal.2d 593, 600 [81 P.2d 903] [excessive award]; Lindemann v. San Joaquin Cotton Oil Co., 5 Cal.2d 480, 510 [55 P.2d 870] [exees*511sive award]; Phelps v. Cogswell, 70 Cal. 201, 204 [11 P. 628] [excessive award].)
The crucial question in this case, therefore, is whether the award of $134,000 for pain and suffering is so excessive it must have resulted from passion, prejudice, whim or caprice. “To say that a verdict has been influenced by passion or prejudice is but another way of saying that the verdict exceeds any amount justified by the evidence.” (Zibbell v. Southern Pacific Co., 160 Cal. 237, 254 [116 P. 513]; see Doolin v. Omnibus Cable Co., 125 Cal. 141, 144 [57 P. 774].)
There has been forceful criticism of the rationale for awarding damages for pain and suffering in negligence cases. (Morris, Liability for Pain and Suffering, 59 Columb.L.Rev. 476; Plant, Damages for Pain and Suffering, 19 Ohio L.J. 200; Jaffe, Damages for Personal Injury-. The Impact of Insurance, 18 Law and Contemporary Problems 219; Zelermyer, Damages for Pain and Suffering, 6 Syracuse L.Rev. 27.) Such damages originated under primitive law as a means of punishing wrongdoers and assuaging the feelings of those who had been wronged. (Morris, Liability for Pain and Suffering, supra, 59 Columb.L.Rev. at p. 478; Jaffe, Damages for Personal Injury -. The Impact of Insurance, supra, 18 Law and Contemporary Problems at pp. 222-223.) They become increasingly anomalous as emphasis shifts in a mechanized society from ad hoc punishment to orderly distribution of losses through insurance and the price of goods or of transportation. Ultimately such losses are borne by a public free of fault as part of the price for the benefits of mechanization. (Cf. Peterson v. Lamb Rubber Co., 54 Cal.2d 339, 347-348 [5 Cal.Rptr. 863, 353 P.2d 575]; Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358 [161 A.2d 69, 77, 75 A.L.R.2d 1]; Escola v. Coca Cola Bottling Co., 24 Cal.2d 453,462 [150 P.2d 436] [concurring opinion].)
Nonetheless, this state has long recognized pain and suffering as elements of damages in negligence cases (Zibbell v. Southern Pacific Co., supra, 160 Cal. 237, 250; Roedder v. Rowley, supra, 28 Cal.2d 820, 822) ; any change in this regard must await reexamination of the problem by the Legislature. Meanwhile, awards for pain and suffering serve to ease plaintiffs’ discomfort and to pay for attorney fees for which plaintiffs are not otherwise compensated.
It would hardly be possible ever to compensate a person fully for pain and suffering. “ ‘No rational being would change places with the injured man for an amount of gold *512that would fill the room of the court, yet no lawyer would contend that such is the legal measure of damages. ’ ” (Zibbell v. Southern Pacific Co., supra, 160 Cal. 237, 255; see 2 Harper and James, The Law of Torts 1322.) “Translating pain and anguish into dollars can, at best, be only an arbitrary allowance, and not a process of measurement, and consequently the-judge can, in his instructions give the jury no standard to go by; he can only tell them to allow such amount as in their discretion they may consider reasonable. . . . The chief reliance for reaching reasonable results in attempting to value suffering in terms of money must be the restraint and common sense of the jury. ...” (McCormick, Damages, § 88, pp. 318-319.) Such restraint and common sense were lacking here.
A review of reported cases involving serious injuries and large pecuniary losses reveals that ordinarily the part of the verdict attributable to pain and suffering does not exceed the part attributable to pecuniary losses. (See 16 A.L.R2d 3-390; 18 West Cal.Dig., Damages, §§ 130-132.) The award in this case of $134,000 for pain and suffering exceeds not only the pecuniary losses but any such award heretofore sustained in this state even in cases involving injuries more serious by far than those suffered by plaintiff. (See Leming v. Oilfields Trucking Co. (1955), 44 Cal.2d 343, 358 [282 P.2d 23, 51 A.L.R.2d 107]; Deshotel v. Atchison, T. & S. F. Ry. Co. (1956), 144 Cal.App.2d 224, 231 [300 P.2d 910]; McNulty v. Southern Pacific Co. (1950), 96 Cal.App.2d 841, 847 [216 P.2d 534] discussed in Kalven, The Jury and The Damage Award, 19 Ohio L.J. 158, 170; Sullivan v. City & County of San Francisco (1950), 95 Cal.App.2d 745, 758-761 [214 P.2d 82]; Gluckstein v. Lipsett (1949), 93 Cal.App.2d 391, 398 [209 P.2d 98]; Huggans v. Southern Pacific Co. (1949), 92 Cal.App.2d 599, 615 [207 P.2d 864].) In McNulty v. Southern Pacific Co., supra, the court reviewed a large number of cases involving injuries to legs and feet, in each of which the total judgment, including both pecuniary loss and pain and suffering did not exceed $100,000.2 Although excessive damages is “an issue which is primarily factual and is not therefore a matter which can be decided upon the basis of awards made in other cases” (Leming v. Oilfields Trucking Co., 44 Cal.2d 343, 356 [282 P.2d 23, 51 A.L.R2d 107]; Crane v. Smith, 23 Cal.2d 288, 302 [144 P.2d 356]), awards for similar in*513juries may be considered as one factor to be weighed in determining whether the damages awarded are excessive. (Maede v. Oakland High School Dist., 212 Cal. 419, 425 [298 P. 987]; McNulty v. Southern Pacific Co., supra, 96 Cal.App. 2d 841, 848.)
The excessive award in this case was undoubtedly the result of the improper argument of plaintiff’s counsel to the jury. Though no evidence was introduced, though none could possibly be introduced on the monetary value of plaintiff’s suffering, counsel urged the jury to award $100 a day for pain and suffering from the time of the accident to the time of trial and $2,000 a year for pain and suffering for the remainder of plaintiff’s life.
The propriety of counsel’s proposing a specific sum for each day or month of suffering has recently been considered by courts of several jurisdictions. (See 19 Ohio L.J. 780; 33 So.Cal.L.Rev. 214, 216.) The reasons for and against permitting “per diem argument for pain and suffering” are reviewed in Ratner v. Arrington (Fla.App.), 111 So.2d 82, 85-90 [1959 Florida decision holding such argument is permissible] and Botta v. Brunner, 26 N.J. 82 [138 A.2d 713, 718-725, 60 A.L.R.2d 1331] [1958 New Jersey decision holding such argument to be an “unwarranted intrusion into the domain of the jury”].
The reason usually advanced for not allowing such argument is that since there is no way of translating pain and suffering into monetary terms, counsel’s proposal of a particular sum for each day of suffering represents an opinion and a conclusion on matters not disclosed by the evidence, and tends to mislead the jury and result in excessive awards. The reason usually advanced for allowing “per diem argument for pain and suffering” is that it affords the jury as good an arbitrary measure as any for that which cannot be measured.
Counsel may argue all legitimate inferences from the evidence, but he may not employ arguments that tend primarily to mislead the jury. (People v. Purvis, 52 Cal.2d 871, 886 [346 P.2d 22]; People v. Johnson, 178 Cal.App.2d 360, 372 [3 Cal.Rptr. 28]; Affett v. Milwaukee & Suburban Transport Corp.) 11 Wis.2d 604 [106 N.W.2d 274, 280] ; Michael and Adler, Trial of an Issue of Fact, 34 Columb.L.Rev. 1224, 1483-1484; cf. Rogers v. Foppiano, 23 Cal.App.2d 87, 94-95 [72 P.2d 239].) A specified sum for pain and suffering for any particular period is bound to be conjectural. Positing such a sum for a small period of time and then multiplying that sum *514by the number of days, minutes or seconds in plaintiff’s life expectancy multiplies the hazards of conjecture. Counsel could arrive at any amount he wished by adjusting either the period of time to be taken as a measure or the amount surmised for the pain for that period.
“The absurdity of a mathematical formula is demonstrated by applying it to its logical conclusion. If a day may be used as a unit of time in measuring pain and suffering, there is no logical reason why an hour or a minute or a second could not be used, or perhaps even a heart-beat since we live from heart-beat to heart-beat. If one cent were used for each second of pain this would amount to $3.60 per hour, to $86.40 per twenty-four hour day, and to $31,536 per year. The absurdity of such a result must be apparent, yet a penny a second for pain and suffering might not sound unreasonable. . . . The use of the formula was prejudicial error.” (Affett v. Milwaukee & Suburban Transport Corp., supra, 11 Wis.2d 604 [106 N.W.2d 274, 280].)
The misleading effect of the per diem argument was not cured by the use of a similar argument by defense counsel. Truth is not served by a clash of sophistic arguments. (See Michael and Adler, The Trial of an Issue of Fact, 34 Columb. L.Rev. 1224, 1483-1484.) Had defendant objected to the improper argument of plaintiff’s counsel this error would be a sufficient ground for reversal whether or not the award was excessive as a matter of law. Defendant’s failure to object, however, did not preclude its appeal on the ground that the award was excessive as a matter of law or preclude this court’s reversing on that ground and ruling on the impropriety of counsel’s argument to guide the court on the retrial. (Code Civ. Proe., § 53.)
I would reverse the judgment and remand the cause for a new trial on the issue of damages.
Schauer, J., and McComb, J., concurred.
Appellants’ petition for a rehearing was denied September 13, 1961. Traynor, J., Schauer, J., and McComb, J., were of the opinion that the petition should be granted.
The award of $53,903.75 for pecuniary loss, past and future, is also suspect. The amount awarded for future medical expenses is $12,196.25 greater than the medical expenses incurred from the time of the accident to the time of trial, a period of nearly two years. The amount awarded for future loss of earnings is $4,500 greater than plaintiff's past loss of earnings. Yet the evidence indicates that plaintiff's medical care has been largely completed and that the future loss of earnings will not exceed the earnings lost by the prolonged stays in the hospital and the rehabilitation center.
The verdicts in some of these eases were over $100,000 but in each case the award was reduced to $100,000 or less.