This writ of error was granted to a judgment of the Circuit Court of Kanawha County, entered on the 31st day of March, 1960, which refused to grant petitioners a writ of error to a judgment of the Court of Common Pleas of Kanawha County. The action was instituted for recovery of damages alleged to have resulted from negligence of defendants, George Clarence Ward and Steel City Transport, Inc., in the operation of a tractor-trailer. The jury returned a verdict in favor of plaintiff, Clara Marie Crum, for eleven thousand dollars, and the Court of Common Pleas of Kanawha County entered judgment on the verdict.
The accident occurred near Smithers, West Virginia, on May 8, 1958, about 10:45 a.m., on a clear day, the road being dry. The plaintiff was operating an automobile owned by her husband, traveling east on United States Highway No. 60. Defendant Ward was operating the tractor-trailer, owned by him, but at the time leased and being used in the business of the defendant, Steel City Transport, Inc., and then carrying a load of approximately nine thousand pounds. The tractor-trailer was also being driven east on United States Highway No. 60.
The evidence of the plaintiff tends to establish that after she had passed through Smithers, traveling at about thirty miles per hour, she was stopped, at the rear of several stopped automobiles, by a road repair crew flagman; that before stopping she gave a proper signal, indicating that she intended to stop, and that after she had stopped, set the emergency brake and
The evidence of defendants tends to establish that plaintiff passed the tractor-trailer, driving in the middle lane of the highway, as she had a right to do if using due care, then immediately pulled into the lane in which the tractor-trailer was being driven and, after driving some distance, came to a sudden stop, without giving proper signals, making it impossible for defendant Ward to have avoided the accident.
Plaintiff was taken to a hospital, where she remained for about a week, but for some time thereafter remained under the care and treatment of a physician. It was found that she suffered pain in her neck, in the lower back, and a contusion of the right knee. She later was returned to the hospital, at which time “traction” was applied, and “She had persistent symptoms of limitation of motion of the neck and apparently pain on moving it to any degree”. Apparently this limitation of motion of the neck was due to pain, for the x-ray examinations were negative. Plaintiff had previously suffered injuries very similar to those mentioned above, and had previously been in the hospital for treatment of conditions peculiar to her sex. Other material facts will be stated in connection with the discussion of the particular proposition to which such other facts relate.
A qualified physician, Doctor Harold Kuhn, testifying on behalf of plaintiff, after having testified that he was familiar with various life expectancy tables and that, in his profession, it was necessary that he be familiar with the “life expectancy generally” of his patients, was asked to “Tell us from your experience and from any table which you regularly use, the life expectancy of this plaintiff, Mrs. Crum, who now gives her age at forty-one”. Doctor Kuhn answered: “I am quoting from a publication of the United States Department of Health, Education and Welfare and the
We think there was no prejudicial error in either action of the court. The question and answer reveal that the publication, sufficiently described, was used “regularly” by the witness, and, moreover, he was also testifying from “experience”. The defendant had an opportunity to examine the publication, and to fully cross-examine the witness in relation thereto. Any lack of accuracy or question as to the correctness of the figures given, or in the authenticity of the publication, could have been made to appear by such cross-examination. See Lawrence v. Nelson, 145 W. Va. 134, 113 S. E. 2d 241. In 25 C. J.S., Damages, Section 151, it is stated: “A person acquainted with the life insurance business, and the mortality tables on which such business is based, may testify as to the probable duration of lives.”
Doctor Newell, called as a witness by defendants, testifying in chief, stated, in effect, that he had examined plaintiff and that her complaint was “soreness and stiffness, etc. of the knee”, and “extreme nervousness”. Counsel for defendants then presented and offered in evidence a report of the doctor, which stated, in addition to the above mentioned findings, that there appeared “strain of muscles in cervical arch”. Defendants then moved that they be permitted to cross-examine their own witness, for the reason that he was a hostile witness, and also moved that the witness be permitted to refer to his report for the purpose of refreshing his memory, which motions were denied.
We think there was no prejudicial error in the actions of the trial court. Though in certain circumstances a litigant may be permitted to cross-examine his own witness who is proved hostile, or where the litigant
During the closing argument counsel for plaintiff was permitted to write on a blackboard, and place before the jury the following figures relative to plaintiff’s claim for damages for pain and suffering:
“15 days at $100.00 _ $ 1,500.00
5/8/58 - 3/4/59 — 301 days $25.00_ 7,525.00
34.73 yrs. 12, 676 days $3 - 38,028.00
$47,053.00”
In the course of the final argument counsel for plaintiff told the jury: “First of all, the testimony is that this woman was in the hospital from 5-8 to 5-15 of 1958. That is seven days, and again from 6-24 to 7-2 — July 2nd. That is eight days, for a total of fifteen days. Then from the time she sustained her injury to today, from 5-8-58 to 3-4 — and I made this up yesterday and
The contention is made that the above mentioned argument, sometimes referred to as the “per diem”, “unit of time”, “blackboard”, or “mathematical formula” basis of argument or method for determining the value of pain and suffering, was not timely objected to by defendants. We think the objection was both timely and sufficient. Before the argument was
The question of whether the permitting of the mathematical formula argument constitutes prejudicial error is answered differently by different courts and writers, some holding that it is clearly prejudicial, some that it is proper and helpful to the jury, and others that it may be permitted where certain cautionary safeguards are set up to prevent prejudice. The point has not been determined by this Court, though it was mentioned in Smith v. Penn Line Service, Inc., 145 W. Va. 1, 113 S. E. 2d 505, where the objection to the argument was deemed insufficient to permit a decision of the point.
The question here involved does not relate to the practice of counsel in using a blackboard or other similar aids or methods for demonstration of, or bringing to the attention of the jury, facts or figures properly revealed by the evidence, such as figures relating to hospital and medical charges. As to such matters, it appears to be conceded, we think properly, that no error results from the use of a blackboard, or similar method, in an argument before the jury.
The authorities holding that it constitutes prejudicial error for counsel to suggest to the jury a mathematical formula for determining the amount of damages based on pain and suffering, whether the suggestion be by the blackboard method or in oral argument without the use of a blackboard or similar method, usually and generally follow the reasoning found in Botta v. Brunner, 26 N. J. 82, 138 A. 2d 713, 60 A.L.R. 2d 1331. There the Court held: “6. In an action for bodily in
“It is just as futile to undertake to attach a price tag to each level or plateau which could be said to have
“Asa consequence, tbe law bas declared tbe standard for measuring damages for personal injuries to be reasonable compensation and bas entrusted tbe administration of tbis criterion to tbe impartial conscience and judgment of jurors wbo may be expected to act reasonably, intelligently and in harmony with tbe evidence * * * Tbis does not mean tbat jurors are free to fix wbat they would want as compensation if tbey bad sustained tbe injuries or wbat tbe pain and suffering would be worth to them. Tbe so-called ‘golden rule’ may not be applied to such damages * *
Numerous authorities are cited in tbe Botta case, supporting tbe bolding therein, and we see no need to cite them here. A valuable annotation is found in 60 A.L.R. 2d 1347. For later cases to tbe same effect, see King v. Railway Express Agency, Inc.,_N.D. —, 107 N. W. 2d 509; Affett v. Milwaukee & Suburban Transport Corporation, 11 Wis. 2d 604, 106 N. W. 2d 274; Henne v. Balick, 51 Del. 369,146 A. 2d 394; Faught v. Washam,_Mo_, 329 S. W. 2d 588; Certified T.V. and Appliance Company v. Harrington, 201 Va. 109, 109 S. E. 2d 126. In tbe Virginia case tbe Court held: “6. In personal injury action, use by plaintiff’s counsel of mathematical formula for measuring pain, suffering, mental anguish and percentage of disability on per diem basis involved speculation of counsel unsupported by evidence, and setting forth bis calculations on blackboard amounted to giving of testimony in bis summation argument, and was improper and constituted error.” In tbe opinion tbe Court stated: “To permit plaintiff’s counsel to suggest and argue to tbe jury an amount to be allowed for pain, suffering, mental anguish and disability calculated on a daily or other fixed basis, allows him to invade tbe province of tbe jury and to get before it wbat does not appear in tbe evidence. Since an expert witness would not be permitted to testify as to tbe market value of pain and
The line of reasoning usually followed by the authorities which hold such an argument not prejudicial is indicated by the following quotation from the concurring opinion found in Olsen v. Preferred Risk Mutual Insurance Company, 11 Utah 2d 23, 354 P. 2d 575. “The jury is entitled to base its determination as to any amount awarded for pain and suffering upon the evidence with respect thereto, judged against the background of their experience and practical knowledge in the everyday affairs of life. If the argument has any valid purpose, and we recognize that it has, it is to discuss the issues in the case with them in that light. One of these is the question of the amount of damages the plaintiff may be entitled to for pain and suffering. To say that he could not talk about nor suggest the amount would, for all practical purposes, prevent him from talking about that issue. If he can talk about it at all and mention some gross figure, which it has always been assumed he could do, it would seem no more harmful to invite the jury’s attention to a process of analysis and reasoning with respect thereto based upon the time involved and reasonable compensation therefor. This seems more realistic than expecting either counsel or the jury to reach into the air and grab some arbitrary figure without making such analysis.” Other cases of the same view are cited in the annotation found in 60 A.L.R. 2d 1347. Varied reasons are given as supporting the validity or justification of such arguments, but, summarily, they revolve around or relate to the right or privilege of
The Federal Courts appear to be as widely divided on the question as are the State Courts. See Vaughan v. Magee, 218 Fed. 630; Wuth v. United States, 161 F. Supp. 661; Chicago and Northwestern Railway Co. v. Candler, 283 Fed. 881; Drlik v. Imperial Oil, Ltd., 141 F. Supp. 388; Bowers v. Pennsylvania Railroad Co., 182 F. Supp. 756.
Some of the authorities are to the effect that mathematical formula arguments are permissible where cautionary safeguards are applied. See Jones v. Hogan, _Wash._, 351 P. 2d 153; Missouri-Kansas-Texas Railroad Co. v. Jones, (Okla.) 354 P. 2d 415; Flaherty v. Minneapolis and St. Louis Railway Co., 251 Minn. 345, 87 N. W. 2d 633; Johnson v. Brown, 75 Nev. 437, 345 P. 2d 754; 4-County Electric Power Association v. Clardy, 221 Miss. 403, 73 So. 2d 144.
Since this Court has not heretofore attempted to solve the problem, especially in view of the widely divergent views, we are in position to assess the problem anew and adopt that position we believe more likely to possess greater potential good, more just verdicts, and have reached the conclusion that in so far as the instant case is concerned, the argument complained of constituted prejudicial error for which the judgment complained of must be reversed.
In this jurisdiction it has been uniformly held, with unanimity in opinions, that pain and suffering may constitute an integral part of a plaintiff’s case for damages resulting from personal injuries and, therefore, may be called to the attention of the jury. Notwithstanding the necessity in such cases of mentioning pain and suffering of a plaintiff, the Court has just as uniformly held that counsel may not injudiciously excite a jury to sympathy or prejudice so as to influence the verdict, and to attempt to do so would,
In Yuncke v. Welker, supra, it was held: “3. In an action for personal injuries, the damages are un-liquidated and indeterminate in character, and the assessment of such damages is the peculiar and exclusive province of the jury. ’ ’
In our view, the mathematical formula argument is based wholly on speculation, or imaginary inferences, not supported by facts, in realty by supposed facts which could not be received in evidence if offered. No effort, perhaps, would succeed in pointing out the almost innumerable variables necessarily existing or involved in such speculation. -For illustration, however, it may be suggested that any attempt to place a money value on pain for any definite unit of time is impossible of any sound basis, for no two persons, it is believed, bear the same sensitivity to pain. The
Though wide latitude and freedom of counsel in arguments to a jury are and ought to be allowed, we have never held that such arguments may be based on facts not in the record, or on inferences based on, or drawn from, facts which are not even admissible. To permit such arguments would not only disturb, to say the least, well known rules of such procedure, and mock or insult the legitimate purposes of such arguments, but would throw wide all efforts to confine such arguments in such a manner as to defeat the useful need of aid to the jury through arguments. In 2 M.J., Argument and Conduct of Counsel, Section 17, it is stated: “While great latitude is allowed argument of counsel, they should not be permitted to excite and inflame the minds of the jury against one of the litigants, nor appeal to their passions and prejudices, and if, when such an argument is made and the trial court is appealed to, it fails to take proper steps to correct its ill tendencies, and an exception is taken at the proper time, it is good ground for reversing the judgment and setting aside the verdict * * * Appeal to
Practical, psychological and philosophical factors do enter the picture. The power of suggestion, and its immeasurable effects, are well known. To merely suggest the existence of pain and suffering, especially pain and suffering of a fellow human being, engenders or activates such complex emotions as sympathy, prejudice, compassion and caprice that exist in every normal person, including each of the twelve jurors, and creates a fervent, resolute desire to relieve or aid the sufferer. The effects of such a suggestion are greatly enhanced or multiplied when made by experienced, learned and eloquent counsel, and even more greatly enhanced by the action of the trial judge in telling the jury, which he effectively does by approving or permitting the argument, that the suggestion of money value of pain and suffering is á reasonable argument and is justifiable, notwithstanding the complete absence of facts related to money value thereof. In such circumstances, could a fair and just verdict, free from sympathy, ordinarily be expected?
In Hendricks, Admr. v. Monongahela West Penn Public Service Company, 111 W. Va. 576, 163 S. E. 411, counsel in argument to the jury made certain remarks which possibly appealed to the sympathy of the jury. The trial court instructed the jury to disregard such remarks, yet this Court, in reversing the judgment for plaintiff, stated: “ * * * This argument was an appeal to the sympathy of the jury, and although the court told the jury to disregard the statement, the persistence in the appeal could not fail in making its impression on the minds of the jurors. Justice is not measured by sympathy. Justice keeps
An examination of some of the many cases wherein this Court has been forced to set aside verdicts because excessive, will reveal the great difficulty in obtaining a fair and just verdict where pain and suffering of a plaintiff are involved. In such cases it is the plaintiff who suffers from the error, by being required to further litigate. See Brewer v. Appalachian Constructors, Inc., 138 W. Va. 437, 76 S. E. 2d 916; Drummond v. Cook Motor Lines, 136 W. Va. 293, 67 S. E. 2d 337; Frampton v. Consolidated Bus Lines, 134 W. Va. 815, 62 S. E. 2d 126; Watson v. Woodall, 134 W. Va. 787, 61 S. E. 2d 747; French v. Sinkford, 132 W. Va. 66, 54 S. E. 2d 38; Vance v. Logan-Williamson Bus Co., 131 W. Va. 296, 46 S. E. 2d 783; Snodgrass v. Charleston NuGrape Co., 113 W. Va. 748, 169 S. E. 406; Thomas v. Lupis, 87 W. Va. 772, 106 S. E. 78; Chafin, Admx. v. Norfolk & Western Railway Co., 80 W. Va. 703, 93 S. E. 822; Stevens v. Friedman, 58 W. Va. 78, 51 S. E. 132.
This Court’s holdings of such prejudicial effects of such an argument are well illustrated by its long line of decisions which hold that the mere mentioning of insurance in the presence of the jury usually, at least, constitutes reversible error, whether the mentioning of insurance occurs in argument, colloquy, or in the examination of a witness, notwithstanding the trial judge may have strongly and vigorously instructed the jury not to consider the question of the existence or nonexistence of insurance. See Leftwich v. Wesco Corporation, 146 W. Va. 196, 119 S. E. 2d 401.
It is, of course, the prerogative of counsel for plaintiff to use every fair, reasonable and legitimate method to obtain a large verdict. The interest of counsel for defendants is to keep the amount of any verdict as low as possible. The function of the court, however, is not to induce a large verdict or a small verdict, but a fair, impartial and just verdict, a verdict based only
It is contended that the verdict in the instant case should not be disturbed, the amount thereof not indicating prejudice. The fact remains, however, that the amount of recovery depended very largely on alleged pain and suffering, and the Court can not say or assume that the erroneous argument did not materially influence the amount of the finding. The facts do not bring the instant case within the rule sometimes applied, that Courts will not disturb verdicts where no prejudice exists. Whether that rule may be applied, where the mathematical formula argument is erroneously permitted, must await a proper ease.
In the petition filed in this Court praying for a writ of error and supersedeas, an assignment of error was made relating to the action of counsel for plaintiff in bringing before the jury the possible existence of insurance. The point, however, apparently is not relied on for reversal and is not developed by defendants in their brief, and we deem it abandoned. Moreover, since the judgments of the lower courts must be reversed on other grounds, and the question may not arise in the event of a new trial, a discussion thereof is not now required.
Plaintiff’s Instruction No. 3A, as amended, read to the jury over objections of defendants, told the jury “that in order for the plaintiff to be barred by contributory negligence, the defendants must prove by a preponderance of the evidence that the plaintiff’s negligence, if any, was a proximate cause of the injury, if any”. Defendants contend that to bar recovery by the plaintiff, contributory negligence need not be a proximate cause of the injury, but that plaintiff will
The rule is correctly stated in Morton v. Baber, 118 W. Va. 457, 190 S. E. 767, where it was held: “3. * * * there is no error in instructing the jury that there can be no recovery if negligence of the decedent, however slight, contributed proximately to his own injury. Such negligence contributes proximately to the injury, if, without it, the injury would not have resulted.”
A plaintiff, of course, is barred from recovery where his own negligence is the proximate cause of the injury or, stated in another way, he can not recover where the accident was the result of his own negligence. McLeod, Admr. v. The Charleston Laundry, 106 W. Va. 361, 145 S. E. 756. A plaintiff, however, is not barred where his own negligence was in no sense a link in the chain of causation, that is, where his negligence was distinctly separated from, did not contribute to, the proximate cause of the injury. Graham v. Wriston, 146 W. Va. 484, 120 S. E. 2d 713, decided this Term; Otte v. Miller, 125 W. Va. 317, 24 S. E. 2d 90; State ex rel. Myles, Admr. v. American Surety Company of New York, 99 W. Va. 123, 127 S. E. 919; Willhide v. Biggs, 118 W. Va. 160, 188 S. E. 876.
Thus it clearly appears, we think, that it was prejudicial error for the trial court to instruct the jury that, to bar plaintiff’s recovery defendants must prove, by a preponderance of the evidence, that contributory negligence “was a proximate cause of the injury”. Contributory negligence, to bar recovery, need not be a proximate cause, or the proximate cause, but precludes recovery “however slight”, if it actually “contributes proximately to the injury”.
Plaintiff’s Instruction No. 3A, as amended, also told the jury that plaintiff “is presumed to have exercised due and proper care at the time she received her injuries, if any, and the burden of proof is upon the defendants to overcome this presumption by a pre
Defendants’ Instruction No. 7 told the jury that an accident ‘ ‘ does not even raise a presumption of negligence”, and that the evidence must establish “that the defendants were guilty of negligence at the time and place of the accident and that their negligence proximately caused plaintiff’s injuries”. In these circumstances, we think the refusal of the trial court to read to the jury defendants’ Instruction B did not constitute reversible error, though to have given it would not have been prejudicial error. Where by an instruction a jury has been sufficiently informed as to a material point of law, it is not reversible error for a trial court to refuse to further instruct on that point. State v. Cirullo, 142 W. Va. 56, 93 S. E. 2d 526.
Defendants’ Instruction No. 4, refused by the court, would have required the jury, in considering their verdict, to first determine the question of liability of defendants, and then, if liability existed, the amount of damages. We think the refusal was not prejudicial error. Though the suggested procedure may not be illogical, and has been, by some courts or by certain rules, adopted or followed, under our procedure the practice has been, usually at least, left to the jury, and we can see no prejudice to any litigant in permitting an intelligent jury to determine such procedure for itself. For illustration, see Robertson v. Hobson, 114 W. Va. 236, 171 S. E. 745.
Defendants’ Instructions Nos. 9A and 9B, substantially to the same effect, both refused, would have told the jury that if plaintiff failed to give the examining physicians a true history of her injuries, and such failure prevented the physicians from reaching valid conclusions, the jury could disregard the opinions of the physicians or give them such weights as they believed them entitled. We think the refusal of such instructions did not constitute reversible error. Though there was slight testimony to the effect that plaintiff had failed to reveal certain facts relating to
Defendants’ Instructions Nos. 10 and 11, refused by the court, were similar and to the general effect that plaintiff was entitled to recover only for injuries, suffering or disabilities resulting from the accident on which the action was founded. Since the evidence discloses that plaintiff had previously suffered an accident which resulted in practically, if not exactly, the same type of disabilities, affecting the same parts of her body, and also that she had previously suffered, and had been treated for, conditions peculiar to her sex, which could have caused “extreme nervousness” and “anxiety and tension”, from which she claims to have been suffering at the time of trial, we think, therefore, that in so far as the question here discussed is involved, it was prejudicial error not to give to the jury either defendant’s Instruction No. 10 or No. 11. Undoubtedly the plaintiff was entitled to recover only damages growing out of or resulting from injuries occasioned by the accident on which the action was founded, and the jury should have been informed of that fact. “2. In order to warrant a substantial recovery in a tort action, the plaintiff must show a legal injury and a perceptible resultant damage. 1 The wrong done and the injury sustained must bear to each other the relation of cause and effect.’ ” Chafin v. Gay Coal & Coke Company, 113 W. Va. 823, 169 S. E. 485.
Defendants’ Instruction No. 13, refused by the court, would have directed the jury that, in the event of a finding in favor of plaintiff, not to “add any sum to what you would otherwise find on account of Federal income taxes”; and that as a “matter of law any amount you award the plaintiff by your verdict is not income to the plaintiff within the meaning of Federal tax law”. The decided cases are in sharp conflict as to whether such an instruction should be given the jury, or whether the refusal thereof, as in the instant case, constitutes prejudicial error. This Court has heretofore considered neither question.
In considering such a question, in Hall v. Chicago and North Western Railway Co., 5 Ill. 2d 135, 125 N. E. 2d 77, the Court held: “10. In personal injury suit, incident of taxation is not proper factor for jury’s consideration in awarding damages, whether imparted by oral argument or written instruction.” In the opinion the Court stated: “ It is a general principle of law that in the trial of a lawsuit the status of the parties is immaterial. Thus, what the plaintiff does with an award, or how the defendant acquires the money with which to pay the award, is of no concern to the court or jury. Similarly, whether the plaintiff has to pay a tax on the award is a matter that concerns only the plaintiff and the government. The tort-feasor has no interest in such question. And if the jury were to mitigate the damages of the plaintiff by reason of the income tax exemption accorded him, then the very Congressional intent of the income tax law to give an injured party a tax benefit would be nullified.
“The defendant has cited Dempsey v. Thompson, 363 Mo. 339, 251 S. W. 2d 42, wherein the Missouri Supreme Court held that it was proper to instruct the jury that an award was not subject to Federal income tax. For the reasons stated herein, we disagree with the conclusion reached by that court. The decision
“We are of the opinion that the incident of taxation is not a proper factor for a jury’s consideration, imparted either by oral argument or written instruction. It introduces an extraneous subject, giving rise to conjecture and speculation.”
The authorities pro and con are cited in an annotation found in 63 A.L.R. 2d 1393. There it is stated: “There are several schools of judicial thought on the matter but the more general view is that in fixing damages for accrued loss of earnings or for impairment of future earning capacity because of personal injuries, the income tax consequences of the injury and the award should not be taken into consideration; on the contrary, the award of damages should be based upon the plaintiff’s gross earnings or earning capacity and should not be reduced because of any income tax saving which may result to the plaintiff from the fact that the damages will be exempt from income tax * * *Courts so ruling have rather generally considered that income tax liability or saving is a matter not pertinent to the damages issue, being a matter between the plaintiff and the taxing authority, of no legal concern to the defendant; that the amount of income tax which might become due on one’s prospective earnings in future
Our view is in accord with the indicated general view, that the refusal of such an instruction does not constitute prejudicial error. There seems little doubt that the injection of such an issue into a jury trial would ordinarily result only in speculation as to so many variables, changing or unsettled circumstances or facts as to confuse the jury and create useless problems, to the injury of either the defendant or the plaintiff.
For the reasons indicated, the judgments of the Circuit Court and the Court of Common Pleas of Ka-nawha County must be reversed, the verdict of the jury set aside, and the case remanded for a new trial.
Judgments reversed; verdict set aside; case remanded.