testified that he would not undertake to say what it was in this case. There are a great many factors to be considered which make it virtually impossible to apply the same percentage to any two given cases. Each case must be determined upon its own set of facts, taking into consideration the particular individual's intelligence, education, temperament and other personal qualities which may have any bearing on his ability to rehabilitate himself to some other form of employment or adapt himself to some other skill. The supply and demand for manpower will vary and have a bearing on future employment. The depreciation of money at the present time and the fact that it has a purchasing power much less than in former years, is an element to be considered. All these and other matters may be considered in evaluating a man's future losses. It is the jury's function to determine, in the exercise of its sound judgment, and from its common experience, how much a man's earning capacity will suffer.
In determining whether a verdict is excessive it must be remembered that the maximum amount which a jury might properly award as damages under the evidence in a personal injury case cannot be determined with any degree of certainty, and must be largely a matter of judgment; the view most favorable to the plaintiff must be inferred from the evidence, and if there is substantial evidence to sustain the verdict it will not be disturbed. Verdicts in other cases of similar character are not controlling. Facts in each case differ so much that no criterion can be established, however, it has been said that there is an increasing tendency amoung the courts in later years to sustain verdicts for much larger amounts than formerly. 15 Am.Jur. 626. In the instant case, the defendant urges that the plaintiff is entitled to a maximum of one-third percentage of disability. Plaintiff suggests that under the evidence, plaintiff could be entitled to one-half to three-fourths disability. It is not the function of this court to make an independent finding as to what percentage of disability the plaintiff may have. It is rather my duty to determine from the evidence the maximum allowance which the jury could have found from the evidence. The jury could find under the evidence that plaintiff will be permanently disabled from performing any substantial work which requires the use of his leg. The evidence shows that from the time he was sixteen years of age, he has been engaged in mechanical and manual labor. Besides going to sea, he has held jobs as a welder and as a track-walker. Plaintiff could, of course, engage in sedentary work, but it does not appear what type of sedentary work he could perform. He applied for reemployment to the defendant and was put to work as a storekeeper's helper. When his foot swelled and interfered with his performance of this job, he asked to be transferred to some sedentary job. The defendant took his request under consideration for three days and then advised him that they had no such work for him. It would appear from this that there is only a limited kind of sedentary work available to him. The jury could have found a substantial impairment in his earning capacity.
In considering plaintiff's earning capacity, defendant contends that it should be limited to the basic wage of $116.50 per month, and the value of the "found" should not be included, because the record does not show that he received any "found". This contention is without merit since the defendant admits in its answer its obligation to provide "found". Moreover, Congress has made it mandatory on the shipowner not only to provide "found" but requires the shipowner to provide a certain minimum scale of provisions. 46 U.S.C.A. § 713. This scale of provisions is incorporated into the shipping articles, which are in evidence. the value of this "found" is, of course, for the jury's judgment.
In arriving at a verdict, which represents the present value of any future losses the jury is at liberty to arrive at an amount based upon their knowledge and experience of human affairs. They are, however, entitled, but not required to use certain standards in aid of their deliberations such as life and annuity tables. Vicksburg & M.R. Co. v. Putnam, 118 U.S. 545, 7 S. Ct. 1, 30 L. Ed. 257; Coast S.S. Co. v. Brady, 5 Cir., 8 F.2d 16. In Dunton v. Hines, D.C., 267 F. 452, the District Court referred to the case of O'Brien v. J.G. White & Co., 105 Me. 308, 316, 74 A. 721, 724, wherein Judge King, in speaking for the Maine Court, held that where the amount awarded would purchase for the plaintiff an annuity in excess of the plaintiff's total yearly earnings, the amount of the verdict should be held to be excessive, and wherein it was further held that the amount to be awarded the plaintiff for the diminution in his future earnings should be a sum equal to the present worth of such diminution for his expectancy of life. In Ward v. Dampskibsselskabet Kjoebenhavn, D.C., 144 F. 524, the District Court for the Eastern District of Pennsylvania, considered the annuity tables of two large insurance companies in determining the present value of future losses. I find that a deposit of $18,400 will purchase, today, from The Union Central Life Insurance Company for a male person, age 29, an annuity on the "refund plan" of $53.72 per month, or $656.88 per year, for the remainder of his life, any balance of the original deposit at his death to go to his beneficiaries in the same installments. A deposit of $18,400 will purchase, today, from the same company, for the same person, an annuity on the "without refund plan" of $55.75 per month, or $681.35 per year, for the remainder of his life, payment of installments ceasing upon his death without refund of any unpaid balance of the original deposit.
The verdict, therefore, represents, on the first plan, the present value of monthly payments of $53.72, or of yearly payments of $656.88, and on the second plan, represents the present value of monthly payments of $55.75 or yearly payments of $681.35. Considering the plaintiff's earning capacity of $116.50 per month, and $1.20 per day for board and lodging (as suggested by defendant's counsel), or $1,836.00 per year, the above annuities would represent a little more than 33 1/3% disability. If the allowance for board and lodging per month is increased (as suggested by plaintiff's counsel) the percentage of disability would be decreased assordingly.I do not know what basis was used by the jury in arriving at its verdict in this case, nor can I, under our system of jurisprudence, discover what it was. If it can be sustained under the testimony and the law upon any proper basis it is my duty to let it stand.
I realize that the decision of a motion for a new trial upon the ground that the verdict of the jury is excessive involves the exercise of a discretion that is not only delicate but difficult, and for this reason, I have given unusual thought and study to the decision of this motion, and I am filing this written opinion in order to recite the considerations that have guided me in the exercise of a discretion imposed by law upon the court in dealing with a verdict that seems excessive, and yet which I cannot, under the principles of law, by which I must be controlled, disturb. The damages in this case resulted from personal injuries, are unliquidated and there is no fixed measure, of mathematical certainty, for such damages.
Under such circumstances, I must be reluctant to disturb the jury's verdict on the ground of excessiveness. Armit v. Loveland, supra. A trial judge is not required as a matter of law to grant a new trial merely because his finding would have been different from the verdict of the jury. Beaudrot v. Southern R. Co., 69 S.C. 160, 48 S.E. 106
; Entzminger v. Seaboard Air Line Ry., 79 S.C. 151, 60 S.E. 441.
Notwithstanding my disagreement with the amount awarded, I am not prepared to say in this case, that the amount of the damages is so excessive, unreasonable or extravagant as to evince that the jury was actuated by passion, partiality, prejudice, corruption, caprice, or the like, and I cannot say, under all the testimony, that it was impossible for the jury to have properly arrived at the amount of its verdict.
For the foregoing reasons, the motion for a new trial, upon the ground of excessiveness, is denied.