Armentrout v. Virginian Ry. Co., 72 F. Supp. 997 (S.D.W. Va. 1947)

U.S. District Court for the Southern District of West Virginia - 72 F. Supp. 997 (S.D.W. Va. 1947)
August 16, 1947

72 F. Supp. 997 (1947)

ARMENTROUT
v.
VIRGINIAN RY. CO.

Civil Action No. 550.

District Court, S. D. West Virginia.

August 16, 1947.

*998 *999 Lilly & Lilly, of Charleston, W. Va., for plaintiff.

John R. Pendleton, of Princeton, W. Va., and Fletcher W. Mann, of Beckley, W. Va., for defendant.

MOORE, District Judge.

The first trial of this case resulted in a hung jury. At the second trial the jury returned a verdict in favor of the plaintiff in the amount of $100,000. On appeal the Circuit Court of Appeals reversed the case and remanded it for a new trial. 4 Cir., 158 F.2d 358. It was tried a third time and at the conclusion of this latest trial the jury returned a verdict in favor of the plaintiff for $160,000.

Defendant moved the Court to set aside the verdict and grant defendant a new trial, assigning five grounds. Four of these are general. They allege the admission by the Court of improper evidence and improper cross examination; argumentative and adverse instructions and comment by the Court; and that the verdict is not supported by the law and the evidence. Specifically, as might be naturally expected, defendant assigns as a ground for setting aside the verdict and granting it a new trial that the verdict is excessive.

After the assignment of the foregoing grounds, defendant assigned further grounds Numbers 6 and 7, as follows:

"6. The verdict of the jury is a quotient verdict and is not the true verdict of the entire jury.

"7. The amount of the verdict was induced by instructions of the Court argumentative and adverse to the defendant, improper argument of counsel for the plaintiff to the jury, adverse publicity given to the case during the trial by Charleston newspapers to which the jury had access, and sympathy of the jurors for the infant plaintiff."

Defendant filed in support of its motion an affidavit of Cecil A. Perdue, one of the jurors, and several clippings from Charleston newspapers published during the course of the trial.

No comment is necessary as to the general grounds assigned by defendant in support of its motion. Objections to the admission of evidence were made and argued by counsel during the course of the trial, and the Court in passing on the objections gave its reasons for admitting the evidence objected to, all of which still appear to the Court to be sound. Only one exception to the Court's charge was taken. This exception related to the Court's comments with reference to the testimony of defendant's witness Murdock. In reviewing the charge I can find nothing therein which would lead me to sustain the exception.

The seventh ground now assigned, criticising the charge of the Court as being argumentative and adverse, and alleging improper argument of counsel for the plaintiff to the jury and adverse publicity in the newspapers, can furnish no reason for setting aside the verdict and granting a new trial. No objection was made at the time to any part of the argument of counsel on either side. No particular ojectionable statement of counsel is pointed out. As said above, only one specific exception was taken to the charge. Therefore, the objection now made both as to counsel's argument and as to the Court's charge comes too late. Federal Rules of Civil Procedure, Rule 51, 28 U.S.C.A. following section 723c; United States v. Socony-Vacuum Oil Co., 1940, 310 U.S. 150, 60 S. Ct. 811, 84 L.Ed 1129, rehearing denied 310 U.S. 658, 60 S. Ct. 1091, 84 L. Ed. 1421. As to the allegation of adverse publicity in the newspapers, a perusal of the newspaper articles reveals nothing which supports this contention. The stories are merely the ordinary reporters' accounts of what took place in the trial. Articles such as these appear in connection with every case tried, and to undertake to suppress them would be a serious interference with the liberty of the press. In my opinion, it would be unreasonable to keep from a jury trying a civil case all newspapers which might publish accounts of the trial during its progress. Nothing *1000 is apparent in any of the articles which would be calculated to influence a juror either for or against the plaintiff. United States v. Reid et al., 12 How. 361, 53 U.S. 361, 13 L. Ed. 1023.

The sixth ground is supported by an affidavit of one of the jurors, Cecil A. Perdue, who says in his affidavit that the verdict was contrary to his convictions, and that he agreed to it with the hope that it would be set aside as unreasonable; and that the verdict was arrived at by each juror writing down the amount he thought the plaintiff was entitled to, the approximate sum, divided by twelve, being the amount of the verdict returned. He also says in his affidavit that if he had been asked by the judge or the clerk if he agreed to the verdict, his answer would have been no.

Generally speaking, public policy does not permit affidavits of jurors to be used to impeach their verdicts. If such a practice should be countenanced, we might expect after every important trial a long series of charges and counter-charges relating to supposed irregularities and misconduct of jurors while in the jury room. The obvious confusion and uncertainty which would result far out-weigh any local or temporary advantage that might be said to follow in an individual case from the reception of an affidavit by a juror to impeach his verdict. McDonald v. Pless, 1915, 238 U.S. 264, 35 S. Ct. 783, 59 L. Ed. 1300.

Quotient verdicts are universally frowned upon, and have been set aside in cases where the proof offered to establish the fact was of such character as to be admissible. However, it is not the mere arriving at the average of the jurors' opinions as to the amount of damage which makes the quotient verdict bad. The vice consists in an agreement by the jurors before announcing the respective amounts that they will be bound by the result of the addition and division. Parshall v. Minneapolis & St. L. R. Co., C. C., 1888, 35 F. 649. It is quite natural that each juror should be asked to state the amount he thinks should be awarded, and it is not unusual that the verdict finally returned should be the approximate average of these amounts. It will be noted that Perdue does not say in his affidavit that either he or any other juror was in favor of finding a verdict for the defendant. He merely states that he was convinced at the time that the amount of the verdict was too large.

The statement in his affidavit that if he had been asked individually by the judge or the clerk if he agreed to the verdict his answer would have been no is contradicted by the record as taken down by the official reporter. This record shows that with all the jurors present the jury were asked if they had agreed on a verdict. The foreman replied, "We have, your Honor." The clerk then read the verdict and after so doing asked the jurors the following question: "And so say each of you?" The record shows that the jury answered, "Yes." It is the practice in this court that if counsel wish the jury to be polled, they must request it. No request was made in this case. However, the Court knows from observation at the time that the record of the reporter to the effect that the jury answered "Yes" was justified by the fact that all the jurors, in answer to the clerk's question, signified their assent by nodding their heads or making other affirmative gestures or statements. Had they done or said nothing in response to the clerk's question, the conclusion would be the same. If any member of the jury disagreed with the verdict, it was his duty to say so, and not having said so at the time, he cannot be heard afterwards to make that claim.

Therefore, the sixth ground of the defendant's motion cannot be sustained.

The only substantial argument in support of the motion to set aside the verdict and grant a new trial is that the verdict is excessive.

Courts are not permitted to substitute their own judgment in matters of damage for that of the jury. It is only in those cases where the amount of the verdict is so large as to demonstrate clearly to the Court that it must have been the result of a gross error in applying legal principles, or that it is based on passion, prejudice or sympathy, that the Court may justly set it aside. Barry v. Edmunds, 1886, 116 U.S. 550, 6 S. Ct. 501, 29 L. Ed. 729 (quoting from *1001 Mr. Justice Story, 2 Story, 661, 670); Burch v. Southern Pac. Co., C.C.1906, 145 F. 443 (reversed on other grounds); Dumphy v. Norfolk & W. Railway Co., 1918, 82 W. Va. 123, 95 S.E. 863, 10 A.L.R. 1152. The mere fact that it may be larger than any verdict heretofore rendered in like circumstances is not decisive, although it is a fact to be considered. The largest verdict which may at any particular time be cited as having been approved by a court was, at the time of its rendition, larger than any which had gone before, and was therefore subject to the criticism that there were no precedents to justify it. The Court must take into consideration every proper circumstance in its effort to reach a just conclusion with respect to the challenged verdict.

The jury were told in the Court's charge what elements should be considered in arriving at the amount of their verdict. The charge followed closely the opinion rendered by the Circuit Court of Appeals in its reversal of the former trial.

In seeking to discover whether or not the jury were actuated by any improper motives in arriving at the amount of the verdict, we should attempt to measure the monetary value of the different elements of damage which were proper for their consideration; bearing in mind the decreased value of the dollar, which has come about very rapidly during the past few years.

The attention of the jury was not specifically directed to the low purchasing power of money, although in my opinion such a suggestion by the Court would have been proper, and certainly the jury were entitled to take that circumstance into consideration. It may be argued that ordinary fluctuations in the purchasing power of money may not properly be considered by a jury in awarding damages. Perhaps not, as to the future; but the jury have the right, and it is their duty, to be realistic. They need not close their eyes to the economic facts of life. It is possible, of course, that values may cease to be affected by inflation of the currency. Economic conditions may conceivably cause the value of the dollar again to rise to the point where it stood before the World War II. On the other hand, there is no assurance that its value may not become less as time goes on. This possibility balances, if it does not outweigh, the contrary forecast. It would be, I think, mere speculation to adopt either theory as the foundation of an estimate of future earnings. Yet some reasonable and logical basis for such an estimate must be found; and, in my opinion, it can be found only by an appraisal of present economic facts, of which the jury are presumed to have knowledge. No one can say now whether a verdict of $160,000 rendered today may be equivalent to one of $300,000 or to one of $80,000 rendered five years hence. We can be guided only by the conditions of the present; and under those conditions, we learn from economic statistics that $160,000 now represents a value of approximately $100,000 in 1939. See Monthly Labor Review, United States Department of Labor, Bureau of Labor Statistics, May 1947, p. 879, table No.1; West Virginia Department of Labor Cost of Living Survey, 1947 Prices (Spring) Compared with 1940 Prices (Spring), Percent Increase Over 1940.

In estimating plaintiff's potential earnings as an able bodied man, the jury would not be justified in classifying him in a professional or highly skilled occupation; and neither would they be required to classify him as a mere day laborer. Some middle course might be taken. It was within the jury's discretion to assume that he would probably engage in some recognized trade, such as carpenter, painter, mechanic, electrician, plumber, or the like. The average earnings of this type of workman would provide a logical standard whereby to arrive at a reasonable estimate of future earnings of the plaintiff. This view is supported by evidence in the trial that plaintiff is above the average in intelligence, and that his parents, as shown both by evidence and by their appearance and demeanor, are respectable and moderately well educated people, who would likely give to their children good educational opportunities. Even if it were thought that he might merely have followed his father's occupation of coal loader, it is a matter of common knowledge in the southern West Virginia coal field that the earnings of this type of workman are now at a level which equals, and *1002 often rises above that of the mechanic, electrician, etc., in many cases in this area going as high as $125 per week. The average present day weekly earnings of workmen in these various occupations, exclusive of coal loaders, is approximately $80. See Wage Scale Charleston Building Trades, April 1947.

During the trial, the Court charged the jury in part as follows:

"* * * the expenses flowing from the disabilitythat is what General Lilly (counsel for plaintiff) was talking about when he spoke of the necessity of careit may not always be necessary for somebody to take care of every want of this child; there may be some appliances that may be fitted on his arms that may permit him to do some things for himself. Certainly, many of the necessary things of life may always have to be done for him, because he has no hands of his own. You are to take that into consideration,whatever expenses will be necessary to provide that type of care for him."

Defendant did not object to this portion of the Court's charge, but, in support of the motion to set aside the verdict, for the first time contends that the cost of nursing and the additional expense necessary to care for plaintiff's personal needs during his minority cannot be deemed a proper item of damages in this action and that, if recoverable, it must be in an action by the father.

Under Rule 51, Federal Rules of Civil Procedure, objection to the Court's charge after rendition of a verdict comes too late, since the Court was given no opportunity to consider the objection and correct the charge if there was an error in it. However, I am of opinion that there was no error on this point. It is, of course, settled law that for medical and nursing expenses already incurred before trial the parent has the only right of action against a wrongdoer. Barker v. Saunders, 1935, 116 W.Va. 548, 182 S.E. 289; McCallam v. Hope Natural Gas Co., 1923, 93 W.Va. 426, 117 S.E. 148; Netherlands-American Steam Nav. Co. v. Hollander, 2 Cir., 1894, 59 F. 417; Jackiewicz v. United Illuminating Co., 1927, 106 Conn. 310, 138 A. 151; Sheffield v. Lovering, 1935, 51 Ga.App. 353, 180 S.E. 523. But with respect to future or prospective expenses of this kind there is quite a division of authority. Some cases support the proposition that the right of action for probable future expenses of nursing and medical care belongs to the parent. Hamlin v. N. H. Bragg & Sons, 1930, 129 Me. 165, 151 A. 197; St. Louis, I. M. & S. Ry. Co. v. Waren, 1898, 65 Ark. 619, 48 S.W. 222; San Antonio St. Ry. Co. v. Muth, 1894, 7 Tex. Civ.App. 443, 27 S.W. 752. Other courts hold definitely that it is the infant who has this right, and this appears to be the modern view, and more in accord with sound reason and equitable considerations. Clarke v. Eighth Avenue Railroad Company, 1924, 238 N.Y. 246, 144 N.E. 516, 37 A.L.R. 1; Cumming v. Brooklyn City R. Co., 1888, 109 N.Y. 95, 16 N.E. 65. See also Stone v. City of Pleasanton, 1924, 115 Kan. 476, 223 P. 303. The reasons for the latter conclusion are discussed forcefully in the Clarke case [238 N.Y. 246, 144 N.E. 517], wherein the Court said: "* * * if the parent be permitted to recover, then the recovery becomes his property. He can do with it as he sees fit. He can will it away, or, if he dies without a will, it becomes part of his estate. In either case, the infant might receive little or no benefit from it. The natural instinct of a parent to properly support his infant children does not always prevail. It is a matter of common knowledge that some do not, and resort has to be made to the statute to compel them to do so. Some parents actually abandon their infant children and leave them objects of charity, or to be maintained and supported by the kindness of relatives or friends."

I conclude that prospective expenses for care and nursing not already incurred by the parent constitute a proper element of the infant's recovery. I believe this conclusion is supported by the opinion of the Circuit Court of Appeals of this Circuit, written in connection with the reversal of this case on a former appeal. Judge Soper there said [158 F.2d 362]: "The permanent nature of the injury, the pain, suffering and humiliation, the loss of earning power and the expenses flowing from disability during a long expectancy were all *1003 proper elements to be considered in making up the verdict." (Emphasis supplied.)

The jury could, without overstepping the bounds of their province, suppose for plaintiff a maximum expectancy of 60½ years from the date of the verdict. This conclusion is based both on statements made by counsel during the trial, which were not denied or contradicted, and also upon a mortality table published by one of the large life insurance companies. See Commissioners 1941 Standard Ordinary Mortality Table, The Mutual Benefit Life Insurance Company, Newark, N. J. By this mortality table the expectancy of a child 4 years old is 60.58 years. While the jury were not bound to consider mortality tables, they did have the right to do so, and by the fullest extension of that right they could base their verdict, in my opinion, on the full length of expectancy provided in the mortality table as expressed to them by counsel in the course of the trial.

The only recent federal decision which I have found in which an attempt is made to appraise the limits of a jury's verdict for pain, suffering, humiliation, disfigurement, etc., is that of McKinney v. Pittsburgh & L. E. R. Co., D.C.1944, 57 F. Supp. 813, wherein Judge Goddard of the Southern District of New York estimated that $40,000 was a reasonable limitation in the case of a man 43 years old (who had therefore a life expectancy of about 26 years), who had lost both feet midway between ankle and knee, and who had sustained other injuries. Upon a comparison of the damages of plaintiff in the instant case to those of the plaintiff in that case, it is seen first, that this plaintiff has an expectancy of more than twice that of the other, and therefore his prolonged humiliation, disfigurement, physical incapacity and other mental and physical results (including perhaps some element of actual pain and suffering), being of a continuing nature, properly enhance the recovery. Secondly, the nature of the injury itself, being a loss of hands in the one case and feet in the other, is much more humiliating and damaging in the case of loss of hands, because this disfigurement cannot possibly be concealed, whereas loss of legs and feet can be, and often is, hidden in such a way as to be virtually unnoticed. For this reason also a jury would be justified in giving a substantially larger verdict in a case of loss of hands and arms than of feet and legs.

With these principles in mind I proceed to analyze the jury's verdict in the light of the maximum factors which might properly have gone into its synthesis. I say maximum factors because I believe that to be the proper test after the jury has acted. Since the jury had the power to extend their discretion to its utmost bounds, any less than the greatest would not be a fair test as to whether or not that power was abused.

If by such a test the verdict is found to be so excessive that it cannot be justified, it should be set aside and a new trial granted, or it should be reduced by remitter to an amount which will not exceed the amount of the product of the maximum factors. Otherwise, it should be sustained as rendered by the jury.

I consider the proper factors to be:

(1) An amount which is not unreasonable to compensate for pain, suffering, humiliation, permanent disfigurement, inconvenience and physical incapacity in daily living, and other mental and physical results of the injury.

(2) A principal sum which will produce a reasonable amount to provide the personal service and care needed by plaintiff from the date of the verdict to the end of his period of maximum expectancy, by reason of the loss of his arms.

(3) A principal sum whose accumulated value at plaintiff's age of 21 will be sufficient for the purpose of providing an annual income which will compensate plaintiff for his loss of earnings each year during his period of maximum expectancy.

Note: Factor 3 is limited to commence at age 21 because the law does not permit an infant to recover for any loss of earnings prior to that age; since it is the duty of the parents to provide for his maintenance and care during infancy, and they have the corresponding right to recover from a wrongdoer his probable loss of earnings during that period. Therefore, this item cannot be included in a recovery by the infant.

*1004 (4) The earning power of the fund to be used as the principal in Factor 3 is estimated at two per cent annually, that being approximately the rate of interest payable on most government obligations at this time. It is assumed that interest will be collected annually and reinvested.

(5) Estimated income taxes are deductible from such income as is produced from interest on the fund. Plaintiff's estimated potential earnings over and above his estimated actual earnings in his crippled condition must be calculated as a net amount; that is, from his estimated potential gross earnings there must first be deducted an amount equivalent to his estimated income tax, and the remainder must be further reduced by the amount of his estimated actual earnings in his crippled condition. This net figure represents the annual estimated net earnings lost by plaintiff.

(6) No consideration is to be given to expenses of administration, since this expense falls into the same category as attorney's fees, which of course are not to be considered.

(7) The income tax factor used is the present day income tax less thirty per cent; it being assumed that within the near future a reduction of at least thirty per cent in the smaller income brackets will be made by Congress.

Calculations according to the foregoing rules produce the following results depending on the estimates used:

 
                                              I.       II.     III.
Maximum amount for pain, suffering,
 etc.                                     $50,000   $60,000   $60,000
Maximum amount for annual care and
 personal service                           1,200     1,500     1,800
Maximum estimated potential annual
 earnings from age 21 to end of period
 of expectancy                              3,700     4,000     4,200
Maximum estimated actual annual
 earnings from age 21 to end of period
 of expectancy                                700       500       800
Interest rate on fund2%
Income tax30% less than at present
Expectancy60½ years from date of
 verdict
Amount of verdict required to liquidate
 all items of compensation               $150,743  $182,143  $190,418

The calculation of Column I is here set forth in detail. Results in Columns II and III have been arrived at by a similar method, the purpose being to produce approximate rather than exact results. The figures used in some cases vary a few dollars from the exact figures which would be used if it were the intention to produce an exact result.

In the following computation the starting point is age 64½ years, being the limit of expectancy. The first calculation is for ½ year. The remainder are for each full year of the expectancy. The end result is the approximate principal sum required at age 4 to provide the estimated annual payments used as the basis of the calculation and completely liquidate the fund at the end of the maximum period of expectancy:

 
$600 Care and personal service for ½ year
1,850 Estimated potential earnings for ½
_______ year
2,450
- 153 Income tax on $1,850 (figured at 70%
______ present rate)
2,297
- 350 Estimated actual earnings for ½ year
______
1,947 Amount of payment for ½ year
1,947 ÷ 1.02 = 1,909
1,947-1,909 = 38      Interest for one full
                        year
38 ÷ 2 = 19           Interest for ½ year
1,947-19 = 1,928      Amount required to
                        produce the sum
                        of 1,947 at 2% interest
                        for ½ year.
 
*1005
$1,928   Principal sum at age 64
 1,200   Care and personal service
______
 3,128
 3,700   Potential earnings
______
 6,828
  -384   Income tax credit
______
 6,444
  -700   Actual earnings
______
 5,744
 5,744 ÷ 1.02 = 5,631
               -------------
$ 5,631  Principal sum at age 63
  1,200  Care and personal service
_______
  6,831
  3,700  Potential earnings
_______
 10,531
  - 384  Income tax credit
_______
 10,147
  - 700  Actual earnings
_______
  9,447
  9,447 ÷ 1.02 = 9,262
             ----------
  9,262  Principal sum at age 62
  1,200  Care and personal service
_______
 10,462
  3,700  Potential earnings
_______
 14,162
  - 384  Income tax credit
_______
 13,778
  - 700  Actual earnings
_______
 13,078
 13,078 ÷ 1.02 = 12,821
           ---------
 12,821  Principal sum at age 61
  1,200  Care and personal service
_______
 14,021
  3,700  Potential earnings
_______
 17,721
  - 384  Income tax credit
_______
 17,337
  - 700  Actual earnings
_______
 16,637
 16,637  ÷ 1.02 = 16,311
          ---------
 16,311  Principal sum at age 60
  1,200  Care and personal service
$17,511
  3,700  Potential earnings
_______
 21,211
  - 384  Income tax credit
_______
 20,827
  - 700  Actual earnings
_______
 20,127
 20,127 ÷ 1.02 = 19,732
          -----------
 19,732  Principal sum at age 59
  1,200  Care and personal service
_______
 20,932
  3,700  Potential earnings
_______
 24,632
  - 384  Income tax credit
_______
 24,248
  - 700  Actual earnings
_______
 23,548
 23,548 ÷ 1.02 = 23,086
         -----------
 23,086  Principal sum at age 58
  1,200  Care and personal service
_______
 24,286
  3,700  Potential earnings
_______
 27,986
  - 384  Income tax credit
_______
 27,602
  - 700  Actual earnings
_______
 26,902
 26,902  ÷ 1.02 = 26,374
          -----------
 26,374  Principal sum at age 57
  1,200  Care and personal service
_______
 27,574
  3,700  Potential earnings
_______
 31,274
  - 384  Income tax credit
_______
 30,890
  - 700  Actual earnings
_______
 30,190
 30,190 ÷ 1.02 = 29,598
    592  Interest for one full year
             ---------
 29,598  Principal sum at age 56
  1,200  Care and personal service
_______
 30,798
 
*1006
$ 3,700  Potential earnings
_______
 34,498
      3  Income tax on 592
_______
 34,501
  - 384  Income tax credit
_______
 34,117
  - 700  Actual earnings
_______
 33,417
 33,417 ÷ 1.02 = 32,761
    656  Interest for one full year
             ---------------
 32,761  Principal sum at age 55
  1,200  Care and personal service
_______
 33,961
  3,700  Potential earnings
_______
 37,661
     13  Income tax on 656
_______
 37,674
  - 384  Income tax credit
_______
 37,290
  - 700  Actual earnings
_______
 36,590
 36,590 ÷ 1.02 = 35,872
    718  Interest for one full year
             ---------------
 35,872  Principal sum at age 54
  1,200  Care and personal service
_______
 37,072
  3,700  Potential earnings
_______
 40,772
     19  Income tax on 718
_______
 40,791
  - 384  Income tax credit
_______
 40,407
  - 700  Actual earnings
_______
 39,707
 39,707 ÷ 1.02 = 38,928
    779  Interest for one full year
             ---------------
 38,928  Principal sum at age 53
  1,200  Care and personal service
_______
 40,128
  3,700  Potential earnings
_______
 43,828
     28  Income tax on 779
$43,856
  - 384  Income tax credit
_______
 43,472
  - 700  Actual earnings
_______
 42,772
 42,772 ÷ 1.02 = 41,933
    839  Interest for one full year
             ---------------
 41,933  Principal sum at age 52
  1,200  Care and personal service
_______
 43,133
  3,700  Potential earnings
_______
 46,833
     34  Income tax on 839
_______
 46,867
  - 384  Income tax credit
_______
 46,483
  - 700  Actual earnings
_______
 45,783
 45,783 ÷ 1.02 = 44,885
    898  Interest for one full year
             ---------------
 44,885  Principal sum at age 51
  1,200  Care and personal service
_______
 46,085
  3,700  Potential earnings
_______
 49,785
     40  Income tax on 898
_______
 49,825
  - 384  Income tax credit
_______
 49,441
  - 700  Actual earnings
_______
 48,741
 48,741  ÷ 1.02 = 47,785
    956  Interest for one full year
             ---------------
 47,785  Principal sum at age 50
  1,200  Care and personal service
_______
 48,985
  3,700  Potential earnings
_______
 52,685
     49  Income tax on 956
_______
 52,734
  - 384  Income tax credit
_______
 52,350
  - 700  Actual earnings
 
*1007
$51,650
 51,650  ÷ 1.02 = 50,637
  1,013  Interest for one full year
             ---------------
 50,637  Principal sum at age 49
  1,200  Care and personal service
_______
 51,837
  3,700  Potential earnings
_______
 55,537
     55  Income tax on 1,013
_______
 55,592
  - 384  Income tax credit
_______
 55,208
  - 700  Actual earnings
_______
 54,508
 54,508  ÷ 1.02 = 53,439
  1,069  Interest for one full year
             ---------------
 53,439  Principal sum at age 48
  1,200  Care and personal service
_______
 54,639
  3,700  Potential earnings
_______
 58,339
     61  Income tax on 1,069
_______
 58,400
  - 384  Income tax credit
_______
 58,016
  - 700  Actual earnings
_______
 57,316
 57,316  ÷ 1.02 = 56,192
  1,124  Interest for one full year
             ---------------
 56,192  Principal sum at age 47
  1,200  Care and personal service
_______
 57,392
  3,700  Potential earnings
_______
 61,092
     66  Income tax on 1,124
_______
 61,158
  - 384  Income tax credit
_______
 60,774
  - 700  Actual earnings
_______
 60,074
 60,074  ÷ 1.02 = 58,896
  1,178  Interest for one full year
             ---------------
$58,896  Principal sum at age 46
  1,200  Care and personal service
_______
 60,096
  3,700  Potential earnings
_______
 63,796
     76  Income tax on 1,178
_______
 63,872
  - 384  Income tax credit
_______
 63,488
  - 700  Actual earnings
_______
 62,788
 62,788  ÷ 1.02 = 61,557
  1,231  Interest for one full year
             ---------------
 61,557  Principal sum at age 45
  1,200  Care and personal service
_______
 62,757
  3,700  Potential earnings
_______
 66,457
     82  Income tax on 1,231
_______
 66,539
  - 384  Income tax credit
_______
 66,155
  - 700  Actual earnings
_______
 65,455
 65,455  ÷ 1.02 = 64,171
  1,284  Interest for one full year
             ---------------
 64,171  Principal sum at age 44
  1,200  Care and personal service
_______
 65,371
  3,700  Potential earnings
_______
 69,071
     88  Income tax on 1,284
_______
 69,159
  - 384  Income tax credit
_______
 68,775
  - 700  Actual earnings
_______
 68,075
 68,075  ÷ 1.02 = 66,740
  1,335  Interest for one full year
             ---------------
 66,740  Principal sum at age 43
  1,200  Care and personal service
_______
 67,940
  3,700  Potential earnings
_______
 71,640
 
*1008
$    94  Income tax on 1,335
_______
 71,734
  - 384  Income tax credit
_______
 71,350
  - 700  Actual earnings
_______
 70,650
 70,650  ÷ 1.02 = 69,265
  1,385  Interest for one full year
             -----------------
 69,265  Principal sum at age, 42
  1,200  Care and personal service
_______
 70,465
  3,700  Potential earnings
_______
 74,165
     99  Income tax on 1,385
_______
 74,264
  - 384  Income tax credit
_______
 73,880
  - 700  Actual earnings
_______
 73,180
 73,180  ÷ 1.02 = 71,745
  1,435  Interest for one full year
             -----------------
 71,745  Principal sum at age 41
  1,200  Care and personal service
_______
 72,945
  3,700  Potential earnings
_______
 76,645
    106  Income tax on 1,435
_______
 76,751
  - 384  Income tax credit
_______
 76,367
  - 700  Actual earnings
_______
 75,667
 75,667  ÷ 1.02 = 74,183
  1,484  Interest for one full year
             -----------------
 74,183  Principal sum at age 40
  1,200  Care and personal service
_______
 75,383
  3,700  Potential earnings
_______
 79,083
    111  Income tax on 1,484
_______
 79,194
  - 384  Income tax credit
_______
 78,810
  - 700  Actual earnings
_______
$78,110
 78,110  ÷ 1.02 = 76,578
  1,532  Interest for one full year
             -----------------
 76,578  Principal sum at age 39
  1,200  Care and personal service
_______
 77,778
  3,700  Potential earnings
_______
 81,478
    118  Income tax on 1,532
_______
 81,596
  - 384  Income tax credit
_______
 81,212
  - 700  Actual earnings
_______
 80,512
 80,512  ÷ 1.02 = 78,933
  1,579  Interest for one full year
             -----------------
 78,933  Principal sum at age 38
  1,200  Care and personal service
_______
 80,133
  3,700  Potential earnings
_______
 83,833
    123  Income tax on 1,579
_______
 83,956
  - 384  Income tax credit
_______
 83,572
  - 700  Actual earnings
_______
 82,872
 82,872  ÷ 1.02 = 81,247
  1,625  Interest for one full year
             -----------------
 81,247  Principal sum at age 37
  1,200  Care and personal service
_______
 82,447
  3,700  Potential earnings
_______
 86,147
    127  Income tax on 1,625
_______
 86,274
  - 384  Income tax credit
_______
 85,890
  - 700  Actual earnings
_______
 85,190
 85,190  ÷ 1.02 = 83,520
  1,670  Interest for one full year
             -----------------
 
*1009
$83,520  Principal sum at age 36
  1,200  Care and personal service
_______
 84,720
  3,700  Potential earnings
_______
 88,420
    132  Income tax on 1,670
_______
 88,552
  - 384  Income tax credit
_______
 88,168
  - 700  Actual earnings
_______
 87,468
 87,468  ÷ 1.02 = 85,753
  1,715  Interest for one full year
             -----------------
 85,753  Principal sum at age 35
  1,200  Care and personal service
_______
 86,953
  3,700  Potential earnings
_______
 90,653
    139  Income tax on 1,715
_______
 90,792
  - 384  Income tax credit
_______
 90,408
  - 700  Actual earnings
_______
 89,708
 89,708  ÷ 1.02 = 87,949
  1,759  Interest for one full year
             -----------------
 87,949  Principal sum at age 34
  1,200  Care and personal service
_______
 89,149
  3,700  Potential earnings
_______
 92,849
    144  Income tax on 1,759
_______
 92,993
  - 384  Income tax credit
_______
 92,609
  - 700  Actual earnings
_______
 91,909
 91,909  ÷ 1.02 = 90,107
  1,802  Interest for one full year
             -----------------
 90,107  Principal sum at age 33
  1,200  Care and personal service
_______
 91,307
  3,700  Potential earnings
_______
 95,007
$   150  Income tax on 1,802
_______
 95,157
  - 384  Income tax credit
_______
 94,773
  - 700  Actual earnings
_______
 94,073
 94,073  ÷ 1.02 = 92,228
  1,845  Interest for one full year
             -----------------
 92,228  Principal sum at age 32
  1,200  Care and personal service
_______
 93,428
  3,700  Potential earnings
_______
 97,128
    153  Income tax on 1,845
_______
 97,281
  - 384  Income tax credit
_______
 96,897
  - 700  Actual earnings
_______
 96,197
 96,197  ÷ 1.02 = 94,311
  1,886  Interest for one full year
             -----------------
 94,311  Principal sum at age 31
  1,200  Care and personal service
_______
 95,511
  3,700  Potential earnings
_______
 99,211
    160  Income tax on 1,886
_______
 99,371
  - 384  Income tax credit
_______
 98,987
  - 700  Actual earnings
_______
 98,287
 98,287  ÷ 1.02 = 96,360
  1,927  Interest for one full year
             -----------------
 96,360  Principal sum at age 30
  1,200  Care and personal service
_______
 97,560
  3,700  Potential earnings
_______
101,260
    165  Income tax on 1,927
_______
101,425
  - 384  Income tax credit
_______
101,041
 
*1010
$  - 700  Actual earnings
________
 100,341
 100,341  ÷ 1.02 = 98,373
   1,968  Interest for one full year
              -----------------
  98,373  Principal sum at age 29
   1,200  Care and personal service
________
  99,573
   3,700  Potential earnings
________
 103,273
     169  Income tax on 1,968
________
 103,442
   - 384  Income tax credit
________
 103,058
   - 700  Actual earnings
________
 102,358
 102,358  ÷ 1.02 = 100,351
   2,007  Interest for one full year
              -----------------
 100,351  Principal sum at age 28
   1,200  Care and personal service
________
 101,551
   3,700  Potential earnings
________
 105,251
     174  Income tax on 2,007
________
 105,425
   - 384  Income tax credit
________
 105,041
   - 700  Actual earnings
________
 104,341
 104,341  ÷ 1.02 = 102,295
   2,046  Interest for one full year
              -----------------
 102,295  Principal sum at age 27
   1,200  Care and personal service
________
 103,495
   3,700  Potential earnings
________
 107,195
     177  Income tax on 2,046
________
 107,372
   - 384  Income tax credit
________
 106,988
   - 700  Actual earnings
________
 106,288
 106,288  ÷ 1.02 = 104,204
   2,084  Interest for one full year
              -----------------
$104,204  Principal sum at age 26
   1,200  Care and personal service
________
 105,404
   3,700  Potential earnings
________
 109,104
     183  Income tax on 2,084
________
 109,287
   - 384  Income tax credit
________
 108,903
   - 700  Actual earnings
________
 108,203
 108,203  ÷ 1.02 = 106,081
   2,122  Interest for one full year
              -----------------
 106,081  Principal sum at age 25
   1,200  Care and personal service
________
 107,281
   3,700  Potential earnings
________
 110,981
     186  Income tax on 2,122
________
 111,167
   - 384  Income tax credit
________
 110,783
   - 700  Actual earnings
________
 110,083
 110,083  ÷ 1.02 = 107,924
   2,159  Interest for one full year
              -----------------
 107,924  Principal sum at age 24
   1,200  Care and personal service
________
 109,124
   3,700  Potential earnings
________
 112,824
     192  Income tax on 2,159
________
 113,016
   - 384  Income tax credit
________
 112,632
   - 700  Actual earnings
________
 111,932
 111,932  ÷ 1.02 = 109,737
   2,195  Interest for one full year
              -----------------
 109,737  Principal sum at age 23
   1,200  Care and personal service
________
 110,937
   3,700  Potential earnings
________
 114,637
 
*1011
$    195  Income tax on 2,195
________
 114,832
   - 384  Income tax credit
________
 114,448
   - 700  Actual earnings
________
 113,748
 113,748 ÷ 1.02 = 111,518
   2,230  Interest for one full year
              -----------------
 111,518  Principal sum at age 22
   1,200  Care and personal service
________
 112,718
   3,700  Potential earnings
________
 116,418
     202  Income tax on 2,230
________
 116,620
   - 384  Income tax credit
________
 116,236
   - 700  Actual earnings
________
 115,536
 115,536 ÷ 1.02 = 113,271
   2,265  Interest for one full year
              -----------------
 113,271  Principal sum at age 21
   1,200  Care and personal service
________
 114,471
     204  Income tax on 2,265
________
 114,675
 114,675 ÷ 1.02 = 112,426
   2,249  Interest for one full year
              -----------------
 112,426  Principal sum at age 20
   1,200  Care and personal service
________
 113,626
     202  Income tax on 2,249
________
 113,828
 113,828 ÷ 1.02 = 111,596
   2,232  Interest for one full year
              -----------------
 111,596  Principal sum at age 19
   1,200  Care and personal service
________
 112,796
     202  Income tax on 2,232
________
 112,998
$112,998 ÷ 1.02 = 110,782
   2,216  Interest for one full year
              -----------------
 110,782  Principal sum at age 18
   1,200  Care and personal service
________
 111,982
     198  Income tax on 2,216
________
 112,180
 112,180 ÷ 1.02 = 109,980
   2,200  Interest for one full year
              -----------------
 109,980  Principal sum at age 17
   1,200  Care and personal service
________
 111,180
     195  Income tax on 2,200
________
 111,375
 111,375 ÷ 1.02 = 109,191
   2,184  Interest for one full year
              -----------------
 109,191  Principal sum at age 16
   1,200  Care and personal service
________
 110,391
     195  Income tax on 2,184
________
 110,586
 110,586 ÷ 1.02 = 108,418
   2,168  Interest for one full year
              -----------------
 108,418  Principal sum at age 15
   1,200  Care and personal service
________
 109,618
     193  Income tax on 2,168
________
 109,811
 109,811 ÷ 1.02 = 107,658
   2,153  Interest for one full year
              -----------------
 107,658  Principal sum at age 14
   1,200  Care and personal service
________
 108,858
     193  Income tax on 2,153
________
 109,051
 109,051 ÷ 1.02 = 106,913
   2,138  Interest for one full year
              -----------------
 
*1012
$106,913  Principal sum at age 13
   1,200  Care and personal service
________
 108,113
     190  Income tax on 2,138
________
 108,303
 108,303 ÷ 1.02 = 106,179
   2,124  Interest for one full year
              -----------------
 106,179  Principal sum at age 12
   1,200  Care and personal service
________
 107,379
     186  Income tax on 2,124
________
 107,565
 107,565 ÷ 1.02 = 105,456
   2,109  Interest for one full year
              -----------------
 105,456  Principal sum at age 11
   1,200  Care and personal service
________
 106,656
     186  Income tax on 2,109
________
 106,842
 106,842 ÷ 1.02 = 104,747
   2,095  Interest for one full year
              -----------------
 104,747  Principal sum at age 10
   1,200  Care and personal service
________
 105,947
     183  Income tax on 2,095
________
 106,130
 106,130 ÷ 1.02 = 104,049
   2,081  Interest for one full year
              -----------------
 104,049  Principal sum at age 9
   1,200  Care and personal service
________
 105,249
     183  Income tax on 2,081
________
 105,432
 105,432 ÷ 1.02 = 103,365
   2,067  Interest for one full year
              -----------------
 103,365  Principal sum at age 8
   1,200  Care and personal service
________
 104,565
     181  Income tax on 2,067
________
 104,746
$104,746 ÷ 1.02 = 102,692
   2,054  Interest for one full year
              -----------------
 102,692  Principal sum at age 7
   1,200  Care and personal service
________
 103,892
     181  Income tax on 2,054
________
 104,073
 104,073 ÷ 1.02 = 102,032
   2,041  Interest for one full year
              -----------------
 102,032  Principal sum at age 6
   1,200  Care and personal service
________
 103,232
     177  Income tax on 2,041
________
 103,409
 103,409 ÷ 1.02 = 101,381
   2,028  Interest for one full year
              -----------------
 101,381  Principal sum at age 5
   1,200  Care and personal service
________
 102,581
     177  Income tax on 2,028
________
 102,758
 102,758 ÷ 1.02 = 100,743
              -----------------
 100,743  Principal sum at age 4
  50,000  Maximum amount for pain, suffering,
           etc.
________
$150,743
              ----------------

It may be stated here that to the Court's personal knowledge, there were some men on this jury who, from long experience, would be naturally expected to weigh and scrutinize figures and calculations, and to see that no imaginative or speculative considerations were permitted to influence the verdict. R. E. Plott, the foreman, has been for years an executive of one of the largest trust companies in the state. Walter H. Beckner is an officer of West Virginia's largest local life insurance company, with home offices in Charleston. John K. Robison is a veteran employee of a large public utility company which distributes gas to the Charleston area.

*1013 Considering all the foregoing facts and figures, and bearing in mind that it is the jury's province to fix the amount of the verdict and not the Court's, I am unable to reach any other conclusion than that the jury had before it sufficient evidence to justify the jury in arriving at the verdict which was rendered, and that, although exceptionally large, there is no just ground for the Court to say that it was influenced by passion, prejudice, sympathy, or any other improper motive.

Hence, defendant's motion to set aside the verdict of the jury and grant it a new trial is denied.

An appropriate order may be submitted.