Frederick Messing vs. Wilmington City Railway Company, a corporation of the State of Delaware

Grubb, J.:

It is for the jury to say to what extent the injuries would deprive him from earning money. Suppose they should arrive at the conclusion that by reason of the injuries testified to the plaintiff is disabled to a certain extent so that his earning capacity is reduced say $100 a year; then the question would be—as he is seeking to recover for permanent injuries which he claims will continue as long as he lives—whether it would not be pertinent then to show how many years he would live ? Say it was a dimunition in earning capacity of $100 a year that was proved and he lived for ten years, it would amount in the aggregate to $1000. And if it is established to the satisfaction of the jury that the plaintiff is injured to the extent of $100 a year in his earning capacity, how are they to know what the aggregate number of years of diminished earning capacity would be unless you show by evidence how many years he would probably live and be able to work if he had not been injured ? What evidence of this is there, then ?—that of experts. These life tables have been made and established by experts and embody their experienced opinions and judgment. Whether such evidence is conclusive testimony or not is not the question ; it is whether it is admissible testimony or not.

I think that, as expert testimony tending to show the probable number of years that the plaintiff would have his earning capacity reduced, and therefore the probable amount of his diminished earning capacity for the number of years he would live, it is admissible evidence before the jury for them to consider; and therefore should be admitted.

I would like to know what answer there can be to that.

Mr. Gray:—I think the fallacy in reasoning for the admission of insurance tables to show the expectancy of life where the injuries may be permanent but the disability is not total, is shown very well in the Iowa case that Mr. Kurtz has just cited, where it speaks of the alternative of the death or the natural disabilities that come upon human beings for work on account of old age. They furnish a false standard to the jury from which they measure the compensation, because in the natural progress of a human being towards the grave, when a man approaches old age, his capacity for work must be less, and if he lived to the full allotted span of life it is the natural result of the gradual decay in human nature that he is not able to work up until the time of his death but is incapacitated from the infirmities attendant upon old age. So that when you get the expectation of life for a man where the disability is not permanent, with the witness upon the stand and his personal appearance and his description of his physical condition before the accident before the jury. I find the latter to be a much safer standard for the jury to determine the extent of his injuries by, than a life insurance table which gives merely his expectancy of life and not his expectancy of work.

It becomes admissible in case of death because the deceased cannot be put upon the stand for the inspection of the jury, consequently they have to consider him as an average man, which the insurance tables compute. The matter of damages in case of death go to the estate that the man would have left, and the jury not being able to see him or judge for themselves from his physical appearance or from his testimony as to his physical condition before the accident or what his probabilities are, by the use of the expectancy of life tables would have some standard by which to estimate how many years he would probably have for the accumulation of an estate.

Grubb, J.:

—Would not that, however, be a stronger reason why, for the just protection of the defendant, it should be excluded where the plaintiff is dead, because otherwise the defendant might be absolutely bound by the life insurance table and the jury obliged to assume that he was the average healthy man, when, if they had him alive before them they might see that he was not likely to live or be able to work so long ? I think the reason is stronger for the admission in case of life than of death.

My position is that it is a standard table made by experienced life insurance experts which is admissible evidence to go before the jury to be considered by them in connection with all the other circumstances in the case.

Pennewill, J.:

—My recollection is that in at least one case such testimony was admitted because the injury was proved to have resulted in total disability, but in the case of McMahon vs. Bangs, (5 Pennewell, 178,) which is the last case as far as we know in which the question was raised, it was admitted where the injury did not, as in this case result in total disability. There the plaintiff, a boy, was struck on the leg by a rock hurled from a blast and the court unanimously admitted the testimony in that case. Upon the authority of that case I have to agree to the admission of this testimony.

Lore, C. J.

(dissenting):—There was a case in which I sat with Judge Boyce, and we ruled the other way. I was very clear that it was establishing a false standard. Where a man is dead you must get some basis for ascertaining the value of his life to his estate, and the jury would have to depend upon the number of years he would have lived, and his earning capacity all through those years. That is a necessity, because the jury have not the man before them and could make no estimate at all. But here is an action, not for death or anything growing out of death, but it is an action to recover for damages to a man who is here with all the conditions surrounding his life testified to before the jury, the injury and connected with it, from which the jury have the actual means of judging for themselves what in their judgment is the extent of the injury. I am very clear that the testimony ought not to be admitted, but the majority of the Court hold otherwise.

(The witness was then asked by Mr. Gray the following questian): From what data is the table you have there constructed ?

A. From the experience of healthy insured lives in the Mutual Life Insurance Company and in other companies in this country and also in European countries.

(Mr. Gray again objects to the testimony offered and makes the following contention):

Mr. Gray:—Mr. Kurtz has offered this table to show the expectancy of life of the average man, and there cannot be such a table given as proper evidence to show to this jury, unless such a table is made by an expert qualified to make it from the tables of mortality of a country or the district in which the man lived, of all the population and not of a selected or special class.

Lore, C. J.:

—A majority of the Court overrule the objection. My opinion is that these insurance tables do not apply to this case. I am not going beyond that.

By Mr. Kurtz:

Q. That is a standard table by which the expectancy of life is shown by life insurance companies ? A. It is used I believe by all these companies.

By Chief Justice Lore:

Q. That is made up from a list of insured people only ? A. I suppose they were insured when they started in, but nobody is insured above 70, yet the table runs to 95.

Q. Then the table covers a class of people that they don’t insure? A. They cannot insure them above 70, but they start in somewhere.

By Mr. Kurtz:

Q,. It is a standard table used by life insurance companies in all cases? A. Yes, sir.

Q. What would be the expectancy of life of a man within two weeks of seventy years of age ?

(Objected to by counsel for defendant on the same grounds as before stated.)

Lore, C. J.:

—A majority of the Court rule it in,

Motion for Nonsuit

Counsel for defendant moved for a nonsuit on two grounds viz.:

1. That there was no evidence of any negligence on the part of the defendant.

2. That there was evidence of contributory negligence on the part of the plaintiff.

Lore, C. J.:

—The Court have very carefully considered this testimony, and after the most careful consideration, a majority of the Court are satisfied that a nonsuit should be entered.

Mr. Kurtz:—The plaintiff refuses to accept a nonsuit.

Lore, C. J.,

charging the jury :

Gentlemen of the jury:—In the ease that is now on trial before you the plaintiff seeks to recover from the defendant for per- • sonal injuries, which he claims that he sustained by reason of the negligence of the defendant. The gist of the action is negligence. The plaintiff has produced his evidence, and upon that a motion was made for a nonsuit, which the Court was about to order, but he dedined to accept a nonsuit and asked us to charge you.

We will say to you, gentlemen, that after a careful consideratian of the plaintiff’s case as he has made it, giving our best judgment and fullest consideration to the evidence, and all proper and reasonable conclusions that may be reasonably drawn therefrom, we are unable to see that the plaintiff has made such a case of negligence as would entitle him to recover, and if we were to let the case go further, and upon that testimony alone you were to return a verdict for the plaintiff, it would become our duty, in our view of the law, to set aside that verdict. So that the time from this on would be simply consumed with no good purpose. While the Court always prefer that a question of fact should be determined by the jury, yet when those facts, in the judgment of the Court, under the rules of law governing them, would not warrant a verdict, in that event it becomes a duty—an unpleasant one, but nevertheless a duty—from which we cannot shrink. We therefore say to you that in view of the facts and the evidence as we have stated it, and the rules of law governing it, a majority of the Court direct you to return a verdict for the defendant.

Verdict for defendant.