(dissenting): I am unable to agree with the majority of the court, and I will attempt to set forth my views on the question concerning which I differ.
The cataclysmic import of the majority opinion is to require of jurors fairness without thought and decision without discussion. The majority of this court has now decided that the only way to obtain a fair verdict — in personal injury cases — is to compel jurors to ponder pain and suffering in a vacuum within the jury room waiting until lightning strikes and something is hatched from nothing.
Defendants (appellants) contend it is reversible error for an attorney to use a mathematical or per diem approach in his argument to the jury regarding the value of pain and suffering. While this type of argument has been used in this state for many years, this appears to be the first time it has been raised as error in this court in cases involving unliquidated damages. However, the question raised is not novel in this country. The same contentions and arguments have been presented to thirty-two jurisdictions in this country within recent years. Only seven states have accepted the argument made by defendants. They are: Stassun v. Chapin, Appellant, 324 Pa. 125, 188 Atl. 111; Botta v. Brunner, 26 N. J. 82, 138 A. 2d 713; Appliance Company v. Harrington, 201 Va. 109, 109 S. E. 2d 126; Crum v. Ward, 146 W. Va. 421, 122 S. E. 2d 18; Henne v. Balick, 1 Storey 369, 51 Del. 369, 146 A. 2d 394; Affett v. Milwaukee & S. T. Corp., 11 Wis. 2d 604, 106 N. W. 2d 274; Caley v. Manicke, 24 Ill. 2d 390, 182 N. E. 2d 206.
In Stassun v. Chapin, supra, the Pennsylvania court held that in cases where the damages are unliquidated and incapable of measurement by a mathematical standard, statements by plaintiffs’ counsel as to the amount claimed or expected are not to be sanctioned. This is the basis upon which Pennsylvania denies the use of per diem formula argument. For many years it has been the rule in Pennsylvania that statements by plaintiffs’ counsel as to the amount sued for, claimed or expected are not permissible either by the court or by counsel.
In Botta v. Brunner, supra, the New Jersey court adopted the Pennsylvania rule of prohibiting counsel or the court from advising the jury as to the amount of unliquidated damages prayed for or mentioning any amount to the jury. In this state we have never had such a rule of law, and to now establish one here would change the *270entire rule of trial procedure and leave the bench and bar in a dilemma.
Only Pennsylvania and New Jersey have clearly adopted the ad damnum rule. The other five states adhering to defendants’ contention have adopted only a part of the New Jersey-Pennsylvania rule. These states recognize that counsel may refer to the amount claimed as unliquidated damages but may not use the questioned ■formula., as to pain and suffering only. A review of the Pennsylvania and New Jersey authorities indicate that these states would not allow counsel to give to the jury any figure for pain and suffering, since the total of the amount claimed as unliquidated damages cannot be given. This would seem to be an undesirable practice, one which is entirely foreign to our jurisdiction, and not completely accepted within then own jurisdiction. In commenting on the wisdom of this rule it was stated in 12 Rutgers Law Review 522:
“. . . Tile plaintiff sues for money. The defendant defends against an award of money. The jury is limited to expressing its findings in terms of money. Nevertheless the jury must be precluded from hearing any reference whatever to money.
The Botta rule requires juries to convert pain to dollars; allows judges to review the result as too much or too little; and yet tells the lawyers, who are the only representatives of their clients, that they must not discuss the matter. In Matthews v. Nelson, 57 N. J. Super. 515, 155 A. 2d 111 (Oct. 1959), after commenting on their Botta case, supra, the New Jersey court permitted a mathematical formula to be argued to the jury in a wrongful death action.
The twenty-five jurisdictions in which defendants’ arguments have been presented and rejected are: Jones v. Hogan, 56 Wn. 2d 23, 351 P. 2d 153; Hill v. C. & E. Constr. Co., 59 Wn. 2d 743, 370 P. 2d 255; Yates v. Wenk, 363 Mich. 311, 109 N. W. 2d 828; Hernandez v. Baucum (Texas Civil Appeals), 344 S. W. 2d 498; Louisville & Nashville Railroad Co. v. Mattingly (Kentucky), 339 S. W. 2d 155; Evansville City Coach Lines, Inc. v. Atherton, __ Ind. App. _, 179 N. E. 2d 293; Harper v. Higgs, 225 Md. 24, 169 A. 2d 661; Little v. Hughes (La.), 136 So. 2d 448; Seffert v. Los Angeles Transit Lines, 15 Cal. Rptr. 161, 364 P. 2d 337; Arnold, et al. v. Ellis, 231 Miss. 757, 97 So. 2d 744; McLaney v. Turner, 267 Ala. 588, 104 So. 2d 315; King v. Railway Express Agency, Inc. (North Dakota), 107 N. W. 2d 509; Miller v. Loy, 101 O. A. 405, 140 N. E. 2d 38; Ratner v. Arrington (Florida), 111 So. 2d 82; Johnson *271v. Brown, 75 Nev. 437, 345 P. 2d 754; Olsen v. Preferred Risk Mutual Insurance Company, 11 Utah 2d 23, 354 P. 2d 575; Johnson v. Charleston & W. C. Ry. Co., 234 S. C. 448, 108 S. E. 2d 777; Missouri-Kansas-Texas Railroad Company v. Jones (Okla.), 354 P. 2d 415; Boutang v. Twin City Motor Bus Co., 248 Minn. 240, 80 N. W. 2d 30; Corkery v. Greenberg, 253 Ia. 846, 114 N. W. 2d 327; Wyant v. Dunn, _ Mont. _, 368 P. 2d 917; Evening Star Newspaper Company v. Gray (D. C.), 179 A. 2d 377; Imperial Oil, Limited v. Drlik, (Sixth Circuit) 234 F. 2d 4, cert. denied 352 U. S. 941, 77 S. Ct. 261, 1 L. Ed. 2d 236; Bowers v. Pennsylvania Railroad Company, 182 F. Supp. 756, affirmed (Third Circuit) 281 F. 2d 953.
Defendants’ counsel base their entire case on the rule as laid down in the Pennsylvania, New Jersey, and the recent Illinois decision of Caley v. Manicke, supra, decided by the supreme court of Illinois on the 12th day of March, 1962. They furnish us with a copy of the Illinois case and base the theory of their argument on these cases. Attention should be invited at this point to the fact that defendants’ counsel have failed to cite to this court the very recent cases of six other sister states holding to the contrary, two of which were decided since the Illinois case.
In Corkery v. Greenberg (Supreme Court of Iowa, Apr. 3, 1962) 253 Ia. 846, 114 N. W. 2d 327, the Iowa court, after analyzing the Pennsylvania and New Jersey opinions — the states relied on by def endents — stated:
“. . . The task of the lawyer is to assist the jury in reaching a verdict. In doing this a suggestion of the manner in which the lawyer reached the amount asked without more cannot invade the province of the jury. The jury must reach their verdict by reasoning and drawing inferences. The per diem argument is nothing more than a suggestion of a course of reasoning from the evidence of pain and disability to the award.” [Emphasis supplied.]
In Eastern Shore Public Service Company v. Corbett (Court of Appeals of Maryland, January, 1962), 177 A. 2d 701, it is-stated, with reference to the per diem formula of argument, that they did not deem it necessary to labor the question, and:
“We think the reasons for permitting such arguments, without repeating them, and the benefits to be derived therefrom outweigh the grounds suggested against their allowance and any disadvantages that might result from such arguments.”
In Evansville City Coach Lines, Inc. v. Atherton (Jan. 1962) 179 N. E. 2d 293, the Indiana appellate court, after review of the cases, said, with reference to the mathematical formula:
*272“To sustain this contention appellant relies upon and quotes at great length from the decision of the Supreme Court of New Jersey in the case of Botta v. Brunner (1958), 26 N. J. 82, 138 A. 2d 713, 60 A. L. R. 2d 1331. This is the minority view, and the overwhelming weight of authority upholds counsel’s right to suggest to the jury in argument an amount on a per diem basis for pain and suffering and permanent injuries as was done here. Imperial Oil, Limited v. Drlik (6 Cir., 1956), 234 F. 2d 4; 352 U. S. 941, 77 S. Ct. 261, 1 L. Ed. 2d 236; Haycock v. Christie (1957), 101 U. S. App. D. C. 409, 249 F. 2d 501; Clark v. Hudson (1957), 265 Ala. 630, 93 So. 2d 138; McLaney v. Turner (1958), 267 Ala. 588, 104 So. 2d 315; Ratner v. Arrington (Fla., App., 1959), 111 So. 2d 82; Aetna Oil Co. v. Metcalf (1944), 298 Ky. 706, 183 S. W. 2d 637; Boutang v. Twin City Motor Bus Co. (1956), 248 Minn. 240, 80 N. W. 2d 30; Flaherty v. Minneapolis & St. Louis Ry. Co. (1958), 251 Minn. 345, 87 N. W. 2d 633; Haley v. Hockey (1950), 199 Misc. 512, 103 N. Y. S. 2d 717; Four-County Elec. P. Ass’n v. Clardy (1954), 221 Miss. 403, 73 So. 2d 144, 44 A. L. R. 2d 1191; Arnold, et al. v. Ellis (1957), 231 Miss. 757, 97 So. 2d 744; A. B. C. Storage & Moving Co. v. Herron (Tex. Civ. App., 1940), 138 S. W. 2d 211; J. D. Wright & Son Truck Line v. Chandler (Tex. Civ. App., 1950), 231 S. W. 2d 786; Continental Bus System Inc. v. Toombs (Tex. Civ. App., 1959), 325 S. W. 2d 153, 164.”
In Wyant v. Dunn (Feb. 1962) 368 P. 2d 917, the Montana court, after reviewing the authorities, including the New Jersey-Pennsylvania rule, stated:
“The preferable rule in this state, in view of our statute and die custom and practice thereunder, is to leave the propriety of counsel’s use of such argument to the sound discretion of the trial court.”
In Little v. Hughes (Dec. 1961) 136 So. 2d 448, the Louisiana court stated:
“We do not agree that defendant was prejudiced by the eminent trial judge’s ruling that the plaintiff could argue to the jury the value of the claim of plaintiff by the use of a previously prepared cardboard chart which attempted to place value by the hour on pain and suffering. The defendant would have us adopt the minority rale expressed in the case of Botta v. Brunner, 26 N. J. 82, 138 A. 2d 713, 60 A. L. R. 2d 1331. However, we believe that the majority rale permits counsel to employ this type of argument.” (Citing thirteen separate jurisdictions.)
In Evening Star Newspaper Company v. Gray (D. C., Jan. 1962), 179 A. 2d 377, the Municipal Court of Appeals of the District of Columbia, after reviewing authorities, stated:
“We think that such statements as these, and decisions such as Botta v. Brunner and Simmons v. Adams, supra, are grounded upon an appraisal of the jury process to which we cannot subscribe. We agree with the Ninth Circuit Court of Appeals that there is no reason why the jury should be influenced by the amount claimed by the plaintiff, any more than by any other claims advanced by the parties. ‘Such claims are not evidence, and it is an *273insult to human intelligence to say that they are likely to mislead or otherwise influence the jury.’ Hoffschlaeger Co., Ltd. v. Fraga, 290 F. 146, 149.”
It is apparent that the overwhelming weight of authority in this country has refused to accept the limitation on argument asserted by defendants. The appellate courts of seven jurisdictions have rendered decisions in the first five months of this year; six jurisdictions, Louisiana, Indiana, Iowa, Montana, Court of Appeals D. C. and Maryland, held that the per diem argument was proper, and only one, Illinois, held to the contrary. Thus the trend of authority seems to continue against defendants’ position and marks it as an illogical, inequitable and the minority rule in this country.
Defendant contends that the per diem argument is, in effect, testimony or evidence, and, if not, at least the jury is apt to mistake the argument for evidence. It is obvious that counsel, in arguing the case to a jury, is not testifying but merely expressing his individual views on the evidence presented and attempting to aid the juiy under the instructions of the court in using some method to arrive at a verdict and sum based upon an action for unliquidated damages.
In the instant case the jurors were instructed prior to argument by counsel as follows:
“You will now listen to arguments of counsel who, in the performance of their duty, will endeavor to aid you in arriving at a just verdict by reviewing and discussing the evidence and showing the■ application and effect thereof under the law as given you in these instructions, and it is your duty to give respectful and careful attention to such arguments as may be addressed to you by counsel for both sides; but whatever comment counsel may make during the course of the trial or what they may say in their arguments, you will bear in mind that it is your sworn duty as triers of this case to be governed in your deliberations and final conclusions by the evidence as it has been produced before you and as you understand and remember it, and the law as given you in these instructions.” [Emphasis supplied.]
This court will take judicial knowledge of the fact that the instruction given was a stock instruction which has been used and approved in this state for a great many years. As was stated by President Frank C. Haymond of the West Virginia court in an excellent expression in Crum v. Ward, supra, “Surely it cannot be successfully asserted that the average jury is so stupid as to believe that counsel as a partisan advocate, in arguing the cause of his client, is giving testimony or acting in the capacity of a sworn witness. Jurors observe and know how a person becomes a witness and how he presents sworn evidence in the trial of a case. To say that the *274statements o£ counsel are considered as evidence by the jury is a manifest misstatement which distorts the facts.”
The Washington supreme court put it this way in Jones v. Hogan, supra: “Argument is not evidence, and we cannot attribute to any jury in this state of lack of sufficient mentality to distinguish between the two. This is especially true after the court has instructed that any remark of counsel not sustained by the evidence should be disregarded.”
In my opinion Kansas jurors are equally as intelligent as jurors in our sister states.
The contention raised most strongly is that the argument by counsel is not based on the evidence, since no witness is allowed to testify as to the amount of compensation which should be recovered for pain and suffering. This argument seems particularly unconvincing. The jury must observe, weigh, and then finally equate the evidence of pain with a money judgment, but the defendant contends that this same evidence does not contain a basis for counsel to argue a per diem worth. Since the verdict must be consistent with the evidence, in other words, inferrable from it, it should follow that counsel’s estimate of the value should also be inferrable from the evidence.
In the course of trial testimony is given as to pain and suffering, and this is the foundation for the argument. Of course, no witness can express an opinion as to the amount which should be awarded for pain and suffering; but the absence of testimony of that character has nothing to do with the right of counsel to discuss the evidence of pain and suffering and draw and present to the jury his inferences from such evidence. It is just as certain that no witness can testify that in his opinion a defendant is negligent; all he can do is to testify to the facts within his knowledge. Whether a defendant is guilty of negligence is a question to be determined by the court or the jury as a trier of fact. I cannot, however, believe that even the authorities which condemn the use in the argument of counsel of a mathematical or per diem formula for ascertaining damages for pain and suffering would consider improper and disapprove argument of counsel in which he gives expression to his inferences from the evidence that the defendant was guilty of negligence. (Crum v. Ward, supra.)
In Kansas counsel have always been allowed and permitted to express their opinions based upon the evidence and inferences *275therefrom as to the sum of money to which they feel the plaintiff is entitled in a personal injury action. How can one now argue that the expression of the opinion or conclusion of counsel, when expressed in terms of a per diem or other time-segment basis, becomes evidence when the expression as to a lump sum amount is perfectly permissible and has never been nor is it now regarded as evidence?
In determining what is “fair and reasonable compensation,” the jury must convert the pain and suffering into dollars. The court gives the jury little or no help in performing this difficult task. Therefore, it would seem that counsel should have wide latitude in argument.
It is asserted that the amount requested in the mathematical formula is purely speculative, and, therefore, should be rejected. Certainly the amount of counsel’s estimate of money value for a day’s or year’s pain is speculative, just as the ad damnum clause in his petition is speculative, and as the jury’s allowance for pain and suffering or for permanent injury is speculative. In Kansas we allow the plaintiff to state to the jury the amount for which he prays, and the court instructs the jury as to the amount of plaintiff’s claim and that its verdict, if for the plaintiff, may not exceed that amount. It would be illogical, therefore, to forbid counsel to explain the components which make up the whole amount claimed.
In Texas and New Orleans Railroad Company v. Flowers (Texas), 336 S. W. 2d 907, the Texas court expressed it this way:
“It would seem that suggesting some concrete formula, although it must be admitted to be purely a suggestion, in order to give the jury some basis to arrive at its verdict is preferable to leaving it entirely at sea to fix a damage figure en masse ‘by guess and by golly.’ ”
It is argued that each individual has a different threshold of pain and so the formula approach will not work; but, again, this same argument applies to any method of computing an award for pain and suffering or for any damage to personal injury, and, therefore, an attorney should be able to suggest a figure based upon the evidence and facts of the particular- case. The Sixth Federal Circuit Court of Appeals said in Imperial Oil, Limited v. Drlik, supra:
“In determining the amount of an award for pain and suffering a juror or judge should necessarily be guided by some reasonable practical considerations. It should not be a blind guess or the pulling of a figure out of the air. At the same time there is no exact or precise measuring stick. Exact compensation is impossible in the abstract but the juror or judge should endeavor to make a reasonable or sane estimate.
*276“We are more concerned with the result, reached by a reasonable process of reasoning and consistent with the evidence, than we are with which one of several suitable formulas was actually used by the jury or judge.”
A strong argument in allowing counsel to use the mentioned technique is the very absence of any fixed rule or standard for monetary measurements of pain and suffering. Great latitude should therefore be allowed counsel in his argument to comment on the evidence, its nature and effect, and to allow proper inference which reasonably may spring from the evidence. Counsel in this state have always been granted the right to argue from the evidence any conclusion which the jury is free to reach, and a lack of objective preciseness in an area of uncertainty should not prohibit or limit such argument.
The few courts which prohibit the mentioned type of argument permit the use as evidence in argument the mortality tables or life expectancy of the injured party as a basis of computation of various elements of damages. I can see nothing more speculative than the life expectancy of a particular individual; yet the Pennsylvania-New Jersey courts permit the life expectancy of the plaintiff to be introduced in evidence and to be used in connection with ascertaining the total amount of the award of damages, and then, because speculative, refuse to permit the use of the mathematical or per diem formula in assisting the jury to arrive at a proper award of damages for pain and suffering except in wrongful death actions. (Matthews v. Nelson, 57 N. J. Super. 515, 155 A. 2d 111.)
It is difficult to conceive of any realistic basis upon which it would be contended that an argument about money could appeal to the sympathy of a jury more than the testimony of the witnesses as to the extent and duration of the pain and suffering actually endured or to be endured.
It appears to me that this court, along with the Florida court in Ratner v. Arrington, supra, should take judicial notice of the practice which has existed among the bar of this state since its statehood to use the per diem argument or other argument from the evidence which might assist the jury in arriving at a just sum of unliquidated damages in any case where such damages are involved.
The question presented here is whether this court will follow the seven states adopting the age-old Pennsylvania rule that does not permit a party or a court to make any reference to the jury *277of the amount claimed as unliquidated damages, or whether we should follow the twenty-five jurisdictions throughout our land that permit the parties to argue to the jury the mathematical formula in assisting the jury, under the instructions of the court, to arrive at a just verdict. I see nothing improper in arguing a mathematical calculation on the matter of the amount of damages to be awarded for pain and suffering; otherwise, the jury might be compelled to resort to the “by guess and by golly” method. Nevertheless, some formula would seem to be the most reasonable and accurate approach and more likely to result in a just and proper allowance. With the Texas court in Hernandez v. Baucum, supra, I consider it a fair argument and rational approach to treat damages for pain the way it is endured — month by month — year by year.
The concept of totality pronounced by the majority opinion has no counterpart in the world of human affairs. Society recognizes “the day” as a basic unit of humanity. We rise in the morning and go to bed at night, and our institutions function accordingly. No judge’s salary is computed or paid in a lifetime lump and there are no lifetime meals, no lifetime drinks, no lifetime haircuts, nor anything else; nor has any living human being ever lived a lifetime of pain in the whole. Pain is lived by the hour and the day and is ticked off by the same clock that sends one to work in the morning and home at night.
Although the jurors will eat their daily meals and live their daily lives, they must now think of pain and suffering as a lifetime lump. Such a coerced concept will have no more meaning than lifetime rent, lifetime shoes, or lifetime meals. This court’s logic would now force jurors to value steak by the herd, cars by the fleet, and pain by the life. Forcing jurors to think in a language they never heard of cannot be designed or expected to produce just results.
There is absolutely no justification for a rule which singles out one type of damage in one type of case and says that it alone is not the proper subject of adversary argument. Logic declares that stifling of discussion and analysis will not lead to intelligent verdicts. It is to be doubted whether a proper verdict can be expected to break through an atmosphere of judicially imposed ignorance; and equal justice to all will not be obtained by muzzling the advocates. This rule cannot help but lead us and the trial courts into either totally inconsistent decisions or into the most unjust results.
*278I adhere to the conclusion reached in our former opinion, Caylor v. Atchison, T. & S. F. Rly. Co., 189 Kan. 210, 368 P. 2d 281.
Robb and Jackson, JJ., join in the dissent written by Wertz, J.