dissenting:
I must dissent from the holding of the court which precludes counsel from suggesting to the jury an hourly or daily rate of compensation for pain and suffering. In the case at bar there is no question but that there is evidence in the record from which it could be reasonably argued that the plaintiff had suffered and will continue to suffer pain as a result of the negligence of defendant. Nor is it questioned by the court, that counsel may properly suggest to the jury a total monetary award for pain and suffering. Graham v. Mattoon City Railway Co. 234 Ill. 483.
It appears that the sole issue before us is whether counsel may go further and explain to the jury the method or basis he has used in arriving at the suggested total monetary award. I can see no logical basis in permitting counsel to suggest a total monetary value of pain and suffering, while prohibiting him from explaining to the jury his reasoning in arriving at such a figure. Yates v. Wenk (1961), 363 Mich. 311, 109 N.W.2d 828.
While it is a truism that pain and suffering have no commercial value and cannot be converted into monetary units with precision, nevertheless the law requires the trier of fact to place a precise monetary value on that element of damage. In this task the jury is guided in the normal case, as in the case at bar, by the judicial admonition to assess damages “at a sum of money which you may find and believe from the evidence will fairly, reasonably and adequately compensate him [plaintiff] for the injuries sustained,” taking into consideration “the pain of body and anguish of mind” the plaintiff has suffered and is reasonably certain to suffer in the future.
Of course, this determination must be left in large part to the conscience and judgment' of the trier of fact. While it is rare that the exact reasoning processes of a jury are revealed, it is apparent that they will vary widely. In Imperial Oil Co. Ltd. v. Drlik (6th cir.) 234 F.2d 4, the trial judge, in assessing damages, used a method substantially similar to that suggested by the argument in the case at bar. In approving of his method the Court of Appeals said : “The practical considerations influencing a particular juror or judge or the reasoning used by him may very well differ with the method used by another juror or judge, yet each of such different methods or modes of reasoning may be a reasonable method of reaching the desired result. 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 juror or the judge.”
There is nothing inherently unreasonable in a juror determining from the evidence the probable duration of pain and suffering and attributing some monetary unit value to the duration of the time. Indeed it would seem likely that many triers of fact would at least consider such factors in their analysis of the complex question of damages.
There is no compelling reason to prohibit counsel from suggesting any reasonable method of analysis of evidentiary facts, relating either to liability or damages. As I would not deny the advocate the right to suggest that certain conduct met or violated the standard of the reasonable and prudent man, so also I would not deny him the right to suggest that a certain monetary value either did or did not constitute “fair compensation” for pain and suffering. Nevertheless both issues are peculiarly within the province and judgment of the jury. It is the historical role of the advocate to seek to persuade the trier of fact to accept the logic and reasoning of his position. The argument in the case at bar does no more than that. Indeed the very absence of an objective standard of evaluating pain and suffering should make us reluctant to circumscribe counsel in analyzing this issue.
Having examined the cases in support of both sides of this controversy, I find that the reasoning of the courts permitting such an argument, especially Yates v. Wenk, 363 Mich. 311, 109 N.W.2d 828, and Ratner v. Arrington, (Fla. App. 1959), 111 So. 2d 82, is more persuasive.
The criticism of the so-called “per diem” argument is grounded in an inherent distrust of the adversary system of jury trials. While such distrust is not new, the detractors of this system have failed to provide a more satisfactory substitute. It would be naive to doubt that extraordinary advocacy may lead an occasional jury to an erroneous or absurd conclusion. Such a danger, however, can be more properly met by the traditional supervisory powers of the trial and appellate courts than by an artificial limitation on the argument of counsel.
In the case at bar the mathematics of plaintiff’s counsel, if followed, would have resulted in a verdict of $50,140.90. The jury, however, assessed the plaintiff’s damages at $20,-000. Defendant makes no claim that this verdict is excessive, but does suggest "that had the ‘per. diem’ argument not been made the result might have been a $7,500.00 or $10,000.00 verdict or some lesser figure.”
Of course it is a fair surmise that any limitation of plaintiff’s argument would tend to decrease the amount of the verdict. However, it does not follow that a verdict arrived at after full argument of the conflicting theories of damages will be excessive. Defendant had the full benefit of the normal cautionary instructions, and was refused no additional cautionary instruction on counsel’s argument or on the question of damages.
The fear that jurors will meekly accept counsel’s suggested mathematical formula as evidence.is belied not only by the verdict in this case but by the common experience of the trial bench and bar. If we were to reverse every non-excessive verdict, merely because the enthusiasm of advocacy entered the realm of speculation and fancy, our affirmances would be few. The record in the base at bar justified the verdict, and the argument of counsel was not prejudicial or improper. The trial court, therefore, should be affirmed.
It appears anamolous that, according to the" majority opinion, plaintiff’s counsel may, without error, place upon a chart before the jury his estimate of the monetary value of the nature of the injury, ($10,000); the future pain, ($8,760); the hospital and medical bills, ($1,288.90) ; the lost earnings, ($5,312); and the permanency of the injury, ($8,000) ; for a total of $33,360.90. He may also suggest a total monetary value of $50,140.90 as just compensation for the injury. However, when he suggests that $16,780.10 is a reasonable figure for 11,680 hours and 510 days of pain, this court feels compelled to reverse a $20,000 verdict. Such a view appears unjustifiable on the basis of logic and unrequired by any policy considerations. I must therefore dissent from the court’s opinion in this case.