Plaintiff brought an action against the defendant to recover $100,000 damages for loss of his right arm resulting from an accident occurring October 10, 1930, while he was employed as a brakeman on one of defendant's freight trains near Timber in the state of Oregon. It was admitted by the defendant that the accident happened as a result of a handle on a freight car giving way so that plaintiff fell under the moving car and his arm was run over necessitating its amputation five and one-half inches below the shoulder; that the plaintiff was at the time engaged in interstate commerce; and that under the Federal Safety Appliance Act (45 U.S.C.A. § 1 et seq.) defendant was liable and it was stipulated that the only issue for trial and determination by the jury was the amount of plaintiff's damages. The jury returned a verdict in favor of the plaintiff for $12,000, for which amount judgment was duly entered.
Plaintiff moved for a new trial, which motion was resisted by the defendant, and on February 15, 1932, an order was made granting the motion. Thereafter, upon plaintiff's motion without notice to the defendant, the district court entered a judgment dismissing the action. Defendant duly excepted to the ruling of the court and preserved its wayside bill of exceptions preserving the record on the trial and the order granting the motion for a new trial. This is an appeal from the judgment dismissing the case with separate bills of exceptions preserving the record before and after the granting of the motion for a new trial.
Plaintiff moved to dismiss the appeal and strenuously urges that no appeal lies to the Supreme Court from a judgment of dismissal because such a judgment is in favor of the defendant, and that plaintiff has an absolute right to dismiss *Page 320 his action, and that appellant could not be and was not prejudiced thereby and has no right to appeal therefrom. Plaintiff relies on R.S. Utah 1933, 104-29-1, which provides that an action may be dismissed or a judgment of nonsuit entered in the following cases: "(1) By the plaintiff himself at any time before trial, upon the payment of costs, if a counterclaim has not been made or affirmative relief sought by the answer of the defendant."
And he cites the case of McCready v. Rio Grande W. Ry.Co., 30 Utah 1, 83 P. 331, 8 Ann. Cas. 732, which held that a railroad had a right as a matter of course to dismiss a condemnation proceeding during a selection of the jury. Also,Sierra Nevada Mill Co. v. Keith-O'Brien Co., 48 Utah 12,156 P. 943, and Ottenheimer v. Mountain States Supply Co.,56 Utah 190, 188 P. 1117, holding that a party may not appeal from a judgment in his favor which he has accepted or acquiesced in and satisfied. The facts in the above cases are in no way similar to the facts in this case, and they have no application here.
The appellant could not appeal directly from the order granting the motion for a new trial for the reason that such an order was not a final judgment. That has been settled by this court in Lukich v. Utah Construction Co., 46 Utah 317,150 P. 298, and Candland v. Mellen, 46 Utah 519, 151 P. 341. It is likewise settled, however, that a judgment of dismissal does constitute a final judgment from which an appeal will lie.Continental Life Ins. Inv. Co. v. Jones, 31 Utah 403,88 P. 229; Lukich v. Utah Construction Co., 48 Utah 452,160 P. 270. And the very procedure here adopted for reviewing an order granting a motion for a new trial has been approved by this court. Hirabelli v. Daniels, 44 Utah 88, 138 P. 1172, 1173;Perrin v. Union Pac. R. Co., 59 Utah 1, 201 P. 405.
I quote from the Hirabelli Case above, Justice Straup speaking for the court: *Page 321
"Our statute and Constitution permit an appeal from only a final judgment. Because of them it has repeatedly been held that an order granting or refusing a new trial is not appealable; such an order being not a final judment. It, however, is just as well settled that on an appeal from the final judgment an order or ruling refusing a motion for a new trial, when the proceedings respecting it are properly preserved and presented by a bill, is reviewable under the provisions of the statute (Comp. Laws 1907, § 3304) that `upon an appeal from a judgment, all orders, rulings, and decisions in the action or proceeding to which exceptions have been taken in the court below, or which are deemed excepted to as provided by this Code, are before the Supreme Court for review.' It has not as yet been decided that an order or ruling granting a new trial is reviewable on an appeal from the final judgment. If such a ruling is not reviewable on such an appeal, it necessarily follows it is not reviewable at all."
Again:
"And since it [the order granting the motion for a new trial] is properly preserved and presented by a bill, we think it is before us for review on appeal from the final judgment. A contrary holding leads to this: No matter how often, or how whimsical or baseless the ground may be on which the trial court may set a verdict aside and grant a new trial, nevertheless, an aggrieved party will be compelled to accept what the court may choose to allow or impose upon him or abandon his cause or defense; for, no matter how often a case may be tried, the trial court, for mere capricious notions that the verdict is too large or too small may set it aside until a jury is found to respond to the court's notions of what the verdict and damages should be; and if, perchance, the proceedings on the last trial are without error, neither party can complain. Surely the statute does not contemplate no relief may be granted from such a prostitution of the constitutional trial by jury."
In Jensen v. Denver R.G.R. Co., 44 Utah 100,138 P. 1185, 1192, it is said:
"A ruling granting or refusing a motion for a new trial is certainly reviewable when the proceedings with respect to it are properly preserved and presented. That has not been questioned. Of course the ruling will not be disturbed on evidence in conflict, or on matters involving discretion. Yet our power to correct a plain abuse of discretion or undo a mere capricious or arbitrary exercise of power cannot be doubted." *Page 322
In this case, if this appeal is dismissed, the defendant is precluded from a ruling on the order of the court granting the motion for a new trial. It would seem almost a waste of time to discuss the argument that the judgment of dismissal is necessarily a judgment in favor of the defendant. The judgment of dismissal was "without prejudice," and it appears that immediately thereafter this plaintiff commenced a new action in the United States District Court here where a verdict and judgment were obtained for $27,000. Upon appeal to the Circuit Court of Appeals, this verdict was set aside and a new trial ordered. 65 F.2d 85.
In this case the defendant admitted liability. It may be that it was willing before the trial to admit liability in the exact sum of $12,000, so that while the judgment was against the defendant they contend it was in fact in their favor because the dispute was between the $12,000 and the claimed $100,000. The trouble then with the argument that the order granting the new trial and dismissing the action is in defendant's favor, is that such order was without prejudice and it deprived the defendant of its claimed victory in the first suit. The defendant, being satisfied with the verdict and judgment, could not, by the method here attempted, be deprived of its right to an appeal from the order setting it aside over its objection.
The case of Hawkins v. Nuttallburg C. C. Co., 66 W. Va. 415,66 S.E. 520, is a case almost in point on every feature to this case. That was an action for death. The jury returned a verdict of $500, and the trial court granted the motion for a new trial, over defendant's objection. When the case reached the appellate court, the plaintiff objected that the defendant had no right to review the judgment granting a new trial because it was in favor of defendant. The court said that even though a judgment is in favor of a party he may seek a reversal of the judgment where it does not afford all the relief claimed; that the defendant had a *Page 323 right to claim finality by the trial where there was no error in the record. Upon examining the record, the court found no error, and held that the trial court therefore abused his discretion in granting the new trial, and the appellate court reinstated the first judgment. A majority of the court, as I understand it, are therefore of the opinion that there is no merit to plaintiff's motion to dismiss the appeal, and that therefore the motion to dismiss the appeal is denied.
On the merits of the appeal, I dissent from the result reached by a majority of the court. On this appeal it is our duty to examine the record to determine whether or not there was an abuse of discretion on the part of the trial court in granting the motion for a new trial. There is no substantial dispute in the evidence in the case which eliminates the consideration of the matter of the trial court's discretion where there is such a dispute in the evidence, or as to the credibility of witnesses. The motion for a new trial assigned as ground therefor, errors at law occurring at the trial, and that the verdict was inadequate and against the law.
The rule seems to be fairly well established in this state that a verdict of a jury in a damage case may not be disturbed unless the damages are so excessive or so small as to fairly create the impression that the jury had plainly misinterpreted the law or the facts in such a manner "as to shock one's conscience and to clearly indicate passion, prejudice or corruption on the part of the jury." Morgan v. Ogden Union Ry. Depot Co., 77 Utah 325, 294 P. 541; McAfee v. Ogden UnionRy. Depot Co., 62 Utah 115, 218 P. 98; Jensen v. Denver R.G. Ry. Co., supra. In the last-named case, the court, speaking of the right of the court to grant a new trial because the verdict for damages was excessive, says:
"Neither is either party on that question entitled to the judgment of the court below in a case of tort tried to a jury. Both parties, as to that, are entitled to the unprejudiced judgment of the jury. That is exclusively within their province. Their power and discretion, *Page 324 when properly exercised and when they have been properly directed as to the measure of damages and the mode of assessing it, may not be interfered with merely because the court above or below may think the amount rendered is too large, or even may think it appears to be larger than the evidence apparently or fairly justifies. A court, vacating a verdict and granting a new trial by merely setting up his opinion or judgment against that of the jury, but usurps judicial power and prostitutes the constitutional trial by jury."
The case of Chesapeake O.R. Co. v. Arrington, 126 Va. 194,101 S.E. 415, 423, is a case of much interest here, where the plaintiff lost an arm, and where the court says:
"The law wisely leaves the assessment of damages, as a rule, to juries, with the concession that there are no scales in which to weigh human suffering, and no measure by which pecuniary compensation for personal injuries can be accurately ascertained."
The court in this case also suggests that, where a verdict is attacked as unusual, it is proper to make a comparison with other verdicts which other juries have found for similar injuries, and calls attention to the fact that from a long list of cases cited in 17 C.J. 1102, in 9 cases for loss of an entire arm, from $6,000 to $25,000, averaging $16,277, were all held excessive, while in 26 cases above $10,000, averaging $13,000, the verdicts were held to be not excessive. No cases holding a verdict for loss of an arm inadequate appear in the note. Apparently, cases where the complaint is that a verdict is inadequate arise much less frequently; but we see no reason why the comparison here referred to may not be made whether the complaint is that the verdict is inadequate or excessive.
Counsel for appellant furnish in their brief a tabulation of 88 cases for loss of an arm, where verdicts have ranged from $5,000 to $32,500, where it appears that the greater number of these verdicts are below $12,000 with the average for the 88 cases being $9,571. We might note here, without expressing an opinion as to what, if any, weight should be given to the matter, that our State Workmen's Compensation *Page 325 Act, R.S. Utah 1933, 42-1-62, fixes a maximum of 200 weeks at $16 per week for loss of an arm at or near the shoulder.
In this case the plaintiff was 33 years of age with a stipulated life expectancy of 33.2 years. His average earnings for the 10-year period prior to the accident were approximately $150 to $175 per month. He usually laid off about two months in the wintertime. The loss of his arm disqualified him from work as a carpenter or as a brakeman, in which occupations he had been engaged for many years.
It would appear from the above that this verdict is well up among the average verdicts in similar cases, and we can find no basis for the trial court to conclude that the verdict was so inadequate as to shock one's conscience or indicate any passion or prejudice on the part of the jury against the plaintiff, and, therefore, no authority or reason that would justify the trial court in granting a new trial on the ground the verdict was inadequate. A very recent case holding that a verdict of the jury should only be set aside where it is manifest from the evidence and rulings that it is not a fair and just verdict, is Shelton v. Underwood (Miss. 1935) 163 So. 828.
The other remaining point that divides counsel here is that the trial court erred in giving the instruction set out in full in the prevailing opinion. Plaintiff excepted to this instruction and particularly that 8 per cent is not a proper basis of computation. Both sides cite the cases of Chesapeake O.R. Co. v. Kelly, Adm'x, 241 U.S. 485, 36 S. Ct. 630, 60 L. Ed. 1117,1124, L.R.A. 1917F, 367, and Gulf, C. S.F. Ry. Co. v. Moser,Adm'x, 275 U.S. 133, 48 S. Ct. 49, 50, 72 L. Ed. 200, and each claims these cases determine the controversy as to the propriety of the above-mentioned instruction in their favor. The Chesapeake O.R. Case, first cited, was a case in which plaintiff recovered a verdict of $19,011 for the death of her husband under the Federal Employers' Liability Act (45 U.S.C.A. §§ 51-59). The defendant *Page 326 requested an instruction to the jury that the measure of damages represents the present cash value of the reasonable expectation of the earnings and contributions of deceased to the plaintiff. The trial court refused the instruction, and the Court of Appeals (160 Ky. 296, 169 S.W. 736) affirmed the judgment, apparently upon the theory the matter was too complicated and the ordinary jury were not competent to figure present worth. The Supreme Court of the United States reversed the case, holding that, where future earnings are to be anticipated and capitalized in a verdict, plaintiff is entitled to no more than their present worth, and it was error to refuse to so instruct the jury. The Supreme Court was not called upon to pass on what rate of interest was proper to consider in figuring present worth, and in that connection used the following language:
"We do not mean to say that the discount should be at what is commonly called the `legal rate' of interest; that is, the rate limited by law, beyond which interest is prohibited. It may be that such rates are not obtainable upon investments on safe securities, at least, without the exercise of financial experience and skill in the administration of the fund; and it is evident that the compensation should be awarded upon a basis that does not call upon the beneficiaries to exercise such skill, for where this is necessarily employed, the interest return is in part earned by the investor rather than by the investment."
In the Gulf, C. S.F. Ry. Case, supra, the Supreme Court again held that it was reversible error to refuse a requested instruction that, in determining the present value of such contributions as plaintiff probably would have received from the continued life of the deceased,
"you will make your calculations on the basis of the amount of your award, bearing interest at the highest net rate of interest that the testimony shows can be had on money safely invested, and secured."
Referring to the Chesapeake O.R. Co. v. Kelly Case, supra, the court says in that case:
"We distinctly stated that: `In computing the damages recoverable for the deprivation of future benefits, the principle of limiting the *Page 327 recovery to compensation requires that adequate allowance be made, according to circumstances, for the earning power of money; in short, that when future payments or other pecuniary benefits are to be anticipated, the verdict should be made up on the basis of their present value only.' The interpretation approved by us has become an integral part of the statute. It should be accepted and followed."
Respondent contends, and the majority of this court apparently adopts the construction, that the instruction given in this case is in "direct conflict" with the above cases, and particularly the portions last quoted. With this contention I cannot agree. There is nothing in the above that condemns the instruction given in this case. Those cases squarely established the rule that the damages allowed by the federal statute should be fixed on the present cash value. As I read them, they do not undertake to lay down any formula for calculating such present value or fix the rate of interest that should be used, because those questions were not before the court. They do appear to indicate that it would be proper to show that the legal rate of interest could not be obtained on safe investments, and, when that appeared, then the rate should be adopted which will make adequate allowance, according to the circumstances, for the earning power of money. There was no showing that 8 per cent could not be had on safe investments in this case.
Appellant cites a number of cases holding that the legal rate of interest is a proper rate to consider in such matters when there is no showing that money could not be safely invested at such rate. We list some of the more recent cases: Western A.R.R. v. Gray, 172 Ga. 286, 157 S.E. 482; St. Louis-SanFrancisco R. Co. v. Floyd, 146 Okla. 42, 293 P. 250, 77 A.L.R. 1431; Southern P. Co. v. Gastelum, 38 Ariz. 127, 297 P. 875;Western A.R.R. v. Bennett, 47 Ga. App. 629, 171 S.E. 187;Bunch v. McLeskey, 173 Ga. 545, 161 S.E. 128. In the last case, the trial court instructed the jury that they might use 6 or 7 per cent, and the case was reversed; the court holding that the legal rate (7 per cent) should have been used. In the case ofAetna Life Ins. *Page 328 Co. v. Geher (C.C.A.) 50 F.2d 657, 659, there was an issue made of the amount of interest commonly paid on safe investments, but no proof offered on the issue. In figuring the present worth of insurance policies, the trial court used 4 per cent. This was held error; the court saying:
"The present worth of a sum of money payable in the future without interest is such a sum as being put at interest at the legal rate will amount to the sum named in the respective policies."
Respondent calls our attention to the language used by the Circuit Court of Appeals in the appeal of the case between these same parties (Southern Pacific Co. v. Klinge, 65 F.2d 85,87), wherein the court held it was not error for the trial court to refuse to give defendant's requested instruction that their verdict of present value should be computed on the assumption that money could be safely invested at the legal rate of 8 per cent. We do not have the record in that case before us. The language used by Judge McDermott is:
"Whether the statutory rate on judgments is even evidentiary might be questionable; but certainly it is not conclusive."
The case was reversed on other grounds, so that the above statement need not be taken as a holding contrary to the views herein expressed, and of course it is not the holding here that the legal rate must be the rate used by the jury in figuring present worth. All that we are required to hold is that in the absence of any testimony or showing as to what was the rate of interest at which money could be safely invested by a person without special financial training, or of any request for further instructions on the subject, it was not error to instruct the jury that they may use the legal rate.
I fully concur in the opinion of Chief Justice ELIAS HANSEN herein. It should not be overlooked that at the time this instruction was given, the highest legal rate of interest in this state was 12 per cent per annum, and not 8 per *Page 329 cent, and that the language of the Supreme Court of the United States is that, "we do not mean to say that the discount should be at what is commonly called the `legal rate' of interest; that is, the rate limited by law, beyond which interest isprohibited," and that the rule that the measure of damages in cases of this kind should be upon the basis of present value "has become an integral part of the statute. It should be acceptedand followed." (Italics added.)
And yet, apparently the thing that is condemned here is that the instruction was so erroneous as to sustain an order granting a new trial, because it permitted the jury to use 8 per cent, or "at least gave the jury to understand they could do so." I find nothing in the authorities to sustain this ruling. Indeed, it seems to me they reach the opposite conclusion. If it is the majority ruling that the word "may" use 8 per cent was, in effect, telling the jury they "must" use that rate of interest, my answer is that the instruction did not use the word "must," and there is nothing in the verdict to indicate that the jury was misled by the instruction. But whatever the reason assigned by the majority in their various opinions, it seems to me the ruling puts an unfair burden on the defendant of either offering evidence of the earning power of money, or leaving the jury to speculate on what rate of interest they will use, and constitutes an unwarranted limitation on the rights of the defendant in applying this mandatory rule of the Supreme Court of the United States in these cases that such damages must be awarded on the basis of present worth.
In my opinion, there was no error in the trial proceedings justifying the ruling granting the new trial, and, therefore, the trial court erred in granting the motion for a new trial, and the order in this case should be that the order granting the new trial and the order dismissing the case should be vacated and set aside, and the case remanded to the district court, with instructions to reinstate the judgment in favor of plaintiff and against the defendant for $12,000 and interest, in accordance with the verdict of the jury. *Page 330