Appeal from the Circuit Court of Cook County; the Hon. HERBERT
PASCHEN, Judge, presiding. Judgment reversed and remanded.
MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT.
Rehearing denied November 9, 1970.
This is an appeal from a judgment rendered in the Circuit Court of Cook County which was entered upon a jury verdict in favor of plaintiff in the sum of $750,000. This action was brought under the Federal Employers' Liability Act (45 U.S.C. § 51 et seq.), for the recovery of damages for plaintiff's personal injuries which he incurred while employed as a switchman by defendant. The defendant railroad admitted liability and the case was submitted to the jury solely on the question of damages.
The defendant seeks a reversal and a new trial based upon errors that it asserts were prejudicial to the defendant. Basically, the contention is that the jury's verdict is excessive and that this court must grant a new trial on the issue of damages. Underlying this contention, the defendant asserts that the trial judge erroneously admitted evidence which prejudiced the jury and resulted in the excessive verdict. Furthermore, defendant contends that the trial court erred in refusing to instruct the jury as to the fact that the plaintiff's award would not be subject to income tax and that the trial court improperly refused to grant a mistrial because of the alleged prejudice resulting from a television broadcast.
Plaintiff contends that the question of excessiveness of the verdict cannot be reviewed by the court and relies upon the case of Hack v. New York, C. & St. L.R. Co., 27 Ill. App.2d 206, 169 N.E.2d 372 (1960), where the court discussed the propriety of a State reviewing court's power to consider a question of manifest weight of the evidence in a Federal Employers' Liability Act case. The court stated, at pages 215-16:
"It has repeatedly been held that a reviewing court in such cases cannot reweigh the evidence. Probably a better statement of that rule would be to say that a reviewing court has no right to consider the evidence and from that consideration determine as to whether or not the verdict of the jury was against the manifest weight of the evidence. The only question presented . . . is as to whether or not there is an evidentiary basis for the jury's verdict, and when such evidentiary basis becomes apparent the appellate court's function is exhausted."
The defendant in Hack was contending that the jury's finding of negligence was erroneous and did not question the amount of the verdict. The Hack case conforms with the decisions in Lavender v. Kurn, 327 U.S. 645 (1946) and Gallick v. Baltimore & O.R. Co., 372 U.S. 108 (1963).
Plaintiff argues that the rule of review with regard to manifest weight questions is equally applicable to a question regarding the excessiveness of the verdict. In this respect, the case of Grunenthal v. Long Island R. Co., 339 U.S. 156 (1968), is relied upon by plaintiff. The United States Supreme Court reversed a Court of Appeals decision which had ordered a remittitur from a jury verdict rendered in a federal district court action under the Federal Employers' Liability Act. The defendant railroad had appealed on the basis of an excessive verdict. The petitioner (plaintiff in the district court) contended that the Court of Appeals had exceeded its powers of review by reasons of the Federal constitutional provision of the Seventh Amendment or that such review was prohibited by the statute itself. The Court did not decide on either ground, expressly holding that the trial judge's action should not have been disturbed since there was no abuse of discretion in accepting the jury's verdict. This was the standard of review relied upon by the Court of Appeals in Grunenthal, which was expressed in Dagnello v. Long Island R. Co., 289 F.2d 797 (1961). The Grunenthal decision concluded that on the Court's appraisal of the evidence, the trial court did not abuse its discretion in accepting the jury's verdict.
From the above, it is evident that the contention raised by plaintiff was not decided in any of the above cited cases. The defendant has asserted that the case of Smith v. Illinois Cent. R. Co., 29 Ill. App.2d 168, 172 N.E.2d 803 (1960), disposes of this contention. That case expressly held that a reviewing court of this State could decide a question of the excessiveness of a jury's verdict under a Federal Employers' Liability Act case. The appellant railroad contended that the Appellate Court could decide questions of excessive verdicts but could not rule upon the question of the weight of the evidence. This court agreed and reasoned that the reviewing courts of this State followed the common law rule that if a trial court improperly failed to enter a remittitur or grant a new trial, a reviewing court could correct the judgment if warranted. See also Crowley v. Elgin, J. & E. Ry. Co., 1 Ill. App.2d 481, 117 N.E.2d 843 (1954). The Smith case stated that the question of an excessive verdict was controlled by the law of the forum as a procedural matter. Further, the Smith case noted that the Federal judiciary would lack the power to pass on the issue due to constitutional prohibition in the Seventh Amendment and that the issue involved a question of fact that was beyond the purview of a federal substantive question.
We are of the opinion that the rationale of the Smith case is controlling the issue before this court. We think there is a reasonable distinction that restricts appellate review of a jury's determination as to the manifest weight of the evidence under the Federal Employers' Liability Act, but allows a reviewing court to consider a question of excessive verdict based on common-law principles. We conclude that this court has the power to consider the propriety of the trial court's judgment regarding damages awarded by the jury's verdict. The defendant's contention is that the jury's verdict was the result of passion and prejudice. This court has the power to review the evidence and pass on such a question, regardless of the fact that plaintiff's right of action is based on the Federal Employers' Liability Act.
A brief summary of the facts shows that on May 18, 1967, the plaintiff sustained injuries while engaged in coupling air hoses between a locomotive and boxcar in defendant's railroad yard. The accident resulted in the amputation of both legs. He was taken to a hospital and underwent surgery on May 18, and on several subsequent occasions. The operations performed were initially of an orthopedic nature and later the plaintiff underwent several operations for plastic surgery, consisting of skin grafts. Plaintiff was under continual nursing care and was given various drugs for pain. In July of 1967, the defendant employed a surgeon with the intent of possibly rehabilitating plaintiff by undertaking further operations to fit plaintiff with prostheses. Plaintiff refused such treatment and was eventually discharged on August 18, 1967. Defendant has paid all expenses of treatment up to the date in July, when plaintiff refused treatment as to the artificial limbs.
Approximately one year later, trial was held on the issue of damages. Evidence was presented by medical testimony of plaintiff's past, present and future condition relating to rehabilitation, to the permanent nature of his injuries and to his pain and suffering. Testimony was produced concerning the plaintiff's family consisting of a wife and three children, his educational history and his work record. His employment with defendant commenced on April 29, 1967, as an extra board switchman, in which he earned $330.56 up to the date of his accident on May 18, 1967. His prospects for future earnings as an employee were examined. Evidence of his past and future medical expenses was introduced. The record discloses that both parties presented a great deal of expert testimony from medical and economic witnesses regarding the amount of damages that the plaintiff was entitled to by reason of this occurrence. The testimony dealt with aspects of past and future loss of wages. Both parties introduced testimony regarding the most advantageous economic means to compensate plaintiff in damages. Plaintiff's life expectancy was established as 42.8 years.
With regard to the contention that improper evidence was admitted, the defendant asserts that improper testimony as to the future of economic inflation and testimony regarding railroad retirement benefits served to arouse the passion and prejudice of the jury in arriving at the damage award. We will discuss these categories of evidence separately.
The evidence of future inflation was elicited by plaintiff's counsel on direct examination of his own witnesses, cross-examination of defense witnesses and in rebuttal during the trial. The first instances occurred in plaintiff's case-in-chief, when John P. Henderson testified as an economics expert. There was no question as to his qualifications in his profession. The witness testified as to past trends in the economy, describing inflation, the increase in prices and wages, and the devaluation of the purchasing power of the dollar. On direct examination he gave the opinion that the inflationary spiral would continue to affect the price level by an estimated 2-4 percent per year. His reason for this opinion was because of a monetary policy which believes that some amount of inflation was desirable to stimulate prices. He also gave an opinion of the future of interest rates for the next 30 years, stating that a return to a ...