Toll v. Waters, Et Vir. , 138 Fla. 349 ( 1939 )

The charge of the court quoted in the Per Curiam opinoin with reference to what the plaintiff below, Mrs. Lucile S. Waters, would be entitled to recover as damages for future pain and suffering, is in my judgment, in some important respects, erroneous. It does not limit the right of recovery to such future pain and suffering as the evidence makes reasonably certain will result from the injuries sustained; nor does it clearly instruct the jury that such sum as they may arrive at in that connection, for damages to be sustained in the future, should be reduced to its present value.

In the case of Grainger v. Fuller, 72 Fla. 57, 72 So. 462, this Court, speaking through Mr. Justice WHITFIELD, said.

"At the trial the following charges were given and exceptions were duly taken:

"In estimating the damages which the plaintiff will sustain in future, if any, you are to consider the probable length of time she will live, taking into consideration the condition of her health before the injury, her age and habits and her life expectancy and the physical pain and mental suffering she will suffer during that time, if any.'

" 'If you find for the plaintiff you will in assessing her damages take into consideration her age and condition in life, the injury sustained by her, if any, and the physical pain and mental anguish suffered and endured by her on account of said injury, if any, and such damages, if any, as you believe from the evidence she will sustain in the future as the direct effect of such injury including the injury to her health and the physical pain and mental anguish which you believe from the evidence she will sustain in future, if any, and assess the damages at such sum as from the evidence you may deem proper, the total amount of such damages not to exceed the sum of ten thousand dollars, the amount sued for, but any sum which you shall award for prospective or future damages you must reduce to its present worth or value before including it in your verdict.'

"In view of the nature of the physical injuries shown to have been sustained by the plaintiff and the amount of damages awarded, the latter portion of the last charge above quoted may be harmful error in that it allowed too broad a latitude of recovery for future suffering.

The charges quoted referred to damages for injury sustained and physical pain and mental anguish suffered and endured on account of the injury, and also to damages, if any, the plaintiff will sustain in the future as the direct effect of the injury including injury to health and physical pain and mental anguish. The rule given for determining the amount is 'such damages, if any, as you believe from the evidence she will sustain in the future.' If there be 'damages * * * she will sustain in the future as the direct effect of such injury,' they should be only such as the evidence makesreasonably certain will result from the injury sustained, for she can recover for such future pain and anguish only as the evidence shows that she is reasonably certain to endure as a result of the injury. This is particularly so with reference to mental anguish as to which there is no evidence.

"Under the charges as given the jury may award such damages as they may believe from the evidence there is a probability the plaintiff will sustain in the future as the direct effect of the injury; while she should recover for only such pain and suffering as the evidence shows she is reasonably certain to endure as the result of the injury. See Smith v. Milwaukee Builders' and Traders' Exchange, 91 Cyc. 360, 64 N.W. Rep. 1041, 30 L.R.A. 504; 13 Cyc. 139. The use of the word 'sustain' instead of 'endure' or its equivalent may not be so material; but in a case of this character a charge on the measure of damages should confine compensation for future physical and mental suffering to such as the evidence shows the plaintiff is reasonably certan to endure as a result of the injury.

"The defendant did not ask for a more accurate and appropriate charge on this point; but on the facts of this case, the charge as given was manifestly harmful to the defendant as shown by the damages awarded." (Italics supplied.")

The above cited case is cited and followed with approval in the case of Florida Cities Bus Company v. Lewis, 107 Fla. 248,146 So. 96; also in the case of Miami Jockey Club v. Aiken,120 Fla. 544, 163 So. 51, in which case the plaintiff wife claimed not only damages for physical pain and suffering but also for future loss of earning. Even as to the latter element of damages, this Court held that the charge involved in that case should have been limited to such damages as the evidence makes reasonably certain will result from the injury sustained. It is all the more important that this principle of law should be observed in instructing the jury with reference to damages claimed with respect to future pain and suffering, which was the main element involved in the case of Grainger v. Fuller, supra.

The case above quoted from was also cited and followed with approval in the case of Baggett v. Davis, 124 Fla. 701,169 So. 372, and the same principle was applied to a case involving a claim for damages for impaired health and earning capacity. In that case, this Court, speaking through Mr. Justice BUFORD, said:

"In order that a jury may assess damages for any permanent injury, it must appear to them that the injury is reasonably certain to impair the health and earning capacity of the injured person in the future; and not merely that it will apparently affect the health and earning capacity of the injured party. See Grainger v. Fuller, 72 Fla. 57, 72 So. 462; 13 Cyc. 239; White v. Milwaukee City Ru. Co., 61 Wis. 536;21 N.W. 524; Louisville Southern Railroad Co. v. Minogue, 90 Ky. 369, 14 S.W. 357, 29 A.S.R. 378. The use of the word 'apparently' in this instruction renders it erroneous, because it permits the jury to award for loss of future earning capacity upon evidence which may not have that certainty necessary in order to recover for loss of future earning capacity."

In this case one of the grounds of motion for new trial was the giving of the charge above referred to, and another ground was the alleged excessiveness of the verdict.

There was no other charge which dealt further with the proposition embraced in the charge above referred to, or that cured the error therein contained.

The closing language of the instruction referred to, i. e., "in fixing the amount thereof you would bear in mind and give consideration to the fact that the complainant is receiving a present cash consideration for damages not yet sustained," shows that the learned trial judge had the established principle in mind, that the amount determined by the jury as damages for future pain and suffering should be reduced to its present cash value, but the language used was hardly as definite on that point as it might have been, and was capable of being misunderstood.

I therefore think the charge, for the two reasons above pointed out, constituted reversible error.