Defendant first alleges that this court has no jurisdiction because there is no diversity of citizenship. Stern claims to be a citizen of Pennsylvania and that Hagl, though a Canadian, lives in Pennsylvania and is therefore a citizen of Pennsylvania for purposes of 28 U.S.C. § 1332(a)(2).
Article III, Section 2 of the Constitution in defining the diversity jurisdiction of federal courts includes cases and controversies between United States citizens "and foreign States, Citizens or Subjects." This is codified in 28 U.S.C. § 1332(a)(2), which allows an alien the right to sue any United States citizen, whether both are domiciled in the same state or not. Thus an alien enjoys a greater right to bring suit in federal court than that given United States citizens. Among those upholding this construction was Chief Justice John Marshall. In Breedlove v. Nicolet, 32 U.S. (7 Pet.) 413, 428, 8 L. Ed. 731 (1833), he held that there is federal jurisdiction even if an alien resides within the same state as a United States citizen. See also Psinakis v. Psinakis, 221 F.2d 418, 423 (3d Cir. 1955); Robinson v. Anastasiou, 339 F. Supp. 472 (S.D. Tex. 1972); Hart and Wechsler, The Federal Courts and The Federal System 1060 (2d ed. 1973); C. Wright, Law of Federal Courts § 24, at 81 (2d ed. 1970). Although giving aliens greater privileges, than those enjoyed by United States citizens, this interpretation has consistently been applied to diversity actions. It follows that there is no merit in defendant's argument.
Stern next contends the court erred in submitting five interrogatories to the jury so that it would make separate awards for each element of plaintiff's asserted injuries. Prejudice is claimed because these several sums were then added together and judgment entered for their total, an excessive amount according to Stern.
The determination of damages is a factual question to be decided by the jury. Gardner v. National Bulk Carriers, Inc., 333 F.2d 676, 677 (4th Cir. 1964). F.R.C.P. 49 bestows broad discretion upon the court to obtain a general, lump sum verdict, or a special verdict, containing a special written finding of each fact. The form of a special verdict is also within the sound discretion of the court. Elston v. Morgan, 440 F.2d 47, 49 (7th Cir. 1971). See Anderson v. Eagle Motor Lines, Inc., 423 F.2d 81, 85 (5th Cir. 1970). The only limitation is that the questions asked of the jury be adequate to determine the essential factual issues. Kornicki v. Calmar S.S. Corp., 460 F.2d 1134, 1139 (3d Cir. 1972).
In this case plaintiff claimed five types of damages and the jury made the following awards: (1) medical expenses, $2,751.85; (2) wage losses from the date of the accident until plaintiff returned to work, $5,400; (3) wage losses from plaintiff's return to work to date of trial, $17,000; (4) plaintiff's future wage losses, reduced to present net worth, $60,000; and (5) pain and suffering, loss of life's pleasure and similar matters, $28,000. There was nothing complicated or extraordinary in these elements. If proved, they clearly flowed out of the accident caused by the negligence of the defendant. Separate questions were posed to simplify the jury's job in deciding the factual question of how much plaintiff was entitled to recover by focusing its attention on the evidence rather than encouraging it to seize upon some nebulous amount. Cf. Neal v. Saga Shipping Co., S.A., 407 F.2d 481, 489 (5th Cir.), cert. denied, 395 U.S. 986, 89 S. Ct. 2143, 23 L. Ed. 2d 775, rehearing denied, 396 U.S. 871, 90 S. Ct. 45, 24 L. Ed. 2d 129 (1969). Stern complains because the jury stated a separate sum for each aspect of the claim and because the verdict was computed by adding them together. In essence, defendant argues that the only way a jury can reach a correct verdict on damages -- thus expressing its feelings on the nuances of the matter
is by a general verdict. Otherwise, the jury can not consider the subtle aspects of a case and the defendant is thereby prejudiced by an inflated verdict. The correct procedure, as outlined by Stern, would have been for me to treat the jury's findings as guides from which I would mold a general and just total for the plaintiff.
To state this contention is to refute it. Not surprisingly, no authority is cited to support the proposition that special verdicts are always too high and that the court should arbitrarily reduce them. Moreover, in this case, I do not find the total, $113,151.85, to be excessive
because each of the constituent findings was supported by competent evidence.
Of the five, defendant raises no objection to three: that for medical expenses, $2,751.85, loss of earnings during complete disability, $5,400, and loss of earnings after return to work to the date of trial, $17,000. However, Stern does argue that the $60,000 award for lost future earnings and the $28,000 for pain and suffering, loss of life's pleasures, and similar matters were excessive.
The damage portion of the trial took the better part of two days. Besides the plaintiff, the testimony of a doctor, an orthopedic surgeon, the business manager of plaintiff's former union, an official of Hagl's present employer, and an actuary, was presented to the jury. The defendant presented no evidence on the question of damages.
Defendant primarily complains that I erred in allowing plaintiff to testify that he was qualified to work as an outside construction welder (pipefitter), had intended to seek such work as soon as he had satisfied the minimum membership-time requirement of his union, but could not do so because of his injuries. A construction welder is a more rigorous and difficult occupation, paying substantially more than the simple welding job Hagl had when injured. It is uncontested that Hagl was eminently qualified to be a construction welder. He had the training and many years experience in his native Hungary and Canada doing such work. It was not unreasonable for the jury to find that he could have been a construction welder in this country. The fact that Hagl was not so employed at the time of his accident was not conclusive since he then had several months of seniority to go before the union would allow him to undertake that type job. Impairment of earning power and limitation of potential earnings a plaintiff could reasonably expect are questions for the jury: Frankel v. Todd, 393 F.2d 435 (3d Cir.), cert. denied, 393 U.S. 855, 89 S. Ct. 137, 21 L. Ed. 2d 120 (1968); DiChiacchio v. Rockcraft Stone Prods. Co., 424 Pa. 77, 225 A.2d 913 (1967); Bochar v. J. B. Martin Motors, Inc., 374 Pa. 240, 97 A.2d 813 (1953).
Plaintiff presented additional testimony that his loss of future earnings, reduced to present worth, would be between a minimum of $39,973 if he continued to work at his old position and a maximum of $133,425 had he worked steadily as a construction welder. The jury awarded $60,000, a reasonable amount suggesting a decision that Hagl would have worked as a construction welder but not all year long.
Stern further objects to the jury's award for pain and suffering and loss of life's pleasures. After reviewing the testimony as to the pain Hagl suffered, the length of time he was disabled, his medical treatment, the loss of his ability to be a professional soccer referee and play soccer with his grandchildren, his difficulty in sleeping, and the impairment of sexual relations with his wife, I conclude that the jury's award of $28,000 was reasonable.
Defendant next contends that it was error to allow plaintiff to alter his claim for damages toward the end of the trial because doing so constituted an unjust surprise. The court has broad discretionary power under F.R.C.P. 15(a) to allow amendments to pleadings, the key requirement being "when justice so requires." Plaintiff's amendment did not introduce any new element of damages -- it merely increased the total sought. Had the amendment been refused, the plaintiff would have been deprived of damages he was able to prove to the jury's satisfaction. See Zatina v. Greyhound Lines, Inc., 442 F.2d 238, 242 (8th Cir. 1971); 6 C. Wright & A. Miller, Federal Practice and Procedure § 1474, at 385 (1971). Stern has not suggested how a higher figure in the original complaint would have lead to a change in defense strategy or trial tactics and none occurs to me. I conclude the amendment did not legally prejudice any of defendant's rights and therefore, it was properly allowed.
Stern also claims that I erred in refusing to allow it the opportunity to show plaintiff's standing to sue was clouded because he was in the United States illegally and thus subject to deportation. Stern also contends it should have been allowed to argue to the jury that since Hagl's continuing presence in this country is not assured, recovery for future earnings loss should be reduced.
Contrary to defendant's insinuation, every alien, whether in this country legally or not, has a right to sue those who physically injure him. Each person is entitled to the equal protection of the law. Sugarman v. Dougall, 413 U.S. 634, 641-42, 93 S. Ct. 2842, 2847, 37 L. Ed. 2d 853 (1973); Graham v. Richardson, 403 U.S. 365, 371, 91 S. Ct. 1848, 1851, 29 L. Ed. 2d 534 (1971); Torao Takahashi v. Fish and Game Commission, 334 U.S. 410, 68 S. Ct. 1138, 92 L. Ed. 1478 (1948); Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 (1886). The Fifth and Fourteenth Amendments use the word person not citizen in this context. The idea of equal protection for all has been codified in 42 U.S.C. § 1981 which states:
All persons within the jurisdiction of the United States shall have the same right . . . to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings . . .