GOLDBERG, Circuit Judge:
At 9:20 p. m. on July 25, 1963, as a tractor-trailer truck with a 42,000 pound load of terra cotta pipe drove around a curve about two miles north of Waycross, Georgia, the load of pipe shifted and spilled over the side of the trailer and on to a car driving in the other direction. The falling pipe crushed the car, killing the driver, Allen Mills, and his wife, Patricia, and orphaning and injuring their three sons. The sons, together with their grandmother, Mrs. Tessie Mills, as next friend, now sue for their personal injuries and for the wrongful death of their parents.
The jury found the defendants liable. It awarded $100,000 damages for each wrongful death and $2,500 for the personal injuries of the plaintiffs. On appeal, defendants admit their negligence and the lack of negligence of the Mills family; they argue that there was insufficient evidence to support the two $100,000 verdicts for wrongful death, that certain expert testimony was erroneously admitted, and that a mistrial should have been granted because of prejudicial statements during final argument by plaintiffs' counsel.
We find no error, and affirm.
I. The liminal problem of jurisdiction does not long detain us. This contention is not only peripheral, but also insubstantial.
Defendants argue that the court should have submitted to the jury the issue of the citizenship of plaintiffs. Unless the trial judge wishes to use the jury advisorily, however, this is simply not a jury issue. Hardin v. McAvoy, 5 Cir. 1955, 216 F.2d 399; Seideman v. Hamilton, 3 Cir. 1960, 275 F.2d 224, cert. denied, 1961, 363 U.S. 820, 80 S.Ct. 1258, 4 L.Ed.2d 1517; see First National Bank in Greenwich v. National Airlines, Inc., 2 Cir. 1961, 288 F.2d 621, cert. denied sub nom. Kessler v. National Airlines, Inc., 1961, 368 U.S. 859, 82 S.Ct. 102, 7 L.Ed.2d 57. Further, every shred of evidence concerning the residence of the plaintiffs tended to show that at the relevant time they resided in either Florida or New York. The Mills family had lived in New York until April or May of 1963, when they moved to Florida. When the accident occurred, in late July, the family was again changing its residence from Florida to New York. Either the plaintiffs were residents of New York if they had not intended to remain permanently in Florida, or else they had become residents of Florida when they moved there. Defendants' counsel's cross-examination of Frederick Mills III, the eldest of the three sons, served only to underline these facts. Nowhere did defendants adduce anything to show otherwise. The trial judge, in rendering judgment, tacitly asserted that he found the requisite diversity. From the state of the evidence,
"A court that renders judgment against a defendant thereby tacitly asserts, if it does not do so expressly, that it has jurisdiction over that defendant." Chicago Life Insurance Co. v. Cherry, 1917, 244 U.S. 25, 29, 37 S.Ct. 492, 493, 61 L.Ed 966, 967; Jackson v. Southern Railway Company, 5 Cir. 1963, 317 F.2d 532, cert. denied, 1963, 375 U.S. 837, 84 S.Ct. 77, 11 L.Ed.2d 65.
II. The defendants also argue that all defendants not in privity with the Canal Insurance Company were misjoined. This argument is based on two cases in the Georgia courts concerning 20 Ga.Code Ann. § 68-612, which reads in part:
This statute permits a motor carrier and its insurance company to be joined in the same suit as defendants. The two Georgia cases, Dishinger v. Suburban Coach Company, 1951, 84 Ga.App. 498, 66 S.E.2d 242, and Reeves v. McHan, 1948, 78 Ga.App. 305, 50 S.E.2d 787, hold that where a motor carrier and its insurance company are joined as defendants, no other defendant may be joined who is not in privity with the insurance company. These cases cite for authority Ga.Code Ann. § 3-113, which reads:
This statute is held by the Georgia courts to prohibit the joining of contract and tort claims in the same action. Insofar as it does prohibit such joinder, however, it is not binding on federal courts in diversity cases. We have held that the question of which claims may be joined in a civil action is a federal one, to be governed by the Federal Rules. In Doyle v. Stanolind Oil & Gas Co., 5 Cir. 1941, 123 F.2d 900, 903, Judge Hutcheson said:
See Texas Employers Insurance Ass'n v. Felt, 5 Cir. 1945, 150 F.2d 227, 231, 160 A.L.R. 931. The ascendancy of the Federal Rules over contrary state practice is emphasized by Hanna v. Plumer, 1964, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8. In that case (which held valid in a diversity case a service of process under Rule 4(d) (1) which would have been invalid under state law) the Supreme Court stated that it was a "fundamental" error to assume that "the rule of Erie R. Co. v. Tompkins [1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188] constitutes the appropriate test of the validity and therefore the applicability of a Federal Rule of Civil Procedure." The Court also said: "To hold that a Federal Rule of Civil Procedure must cease to function whenever it alters the mode of enforcing state-created rights would be to
The Rules allow joinder in such a case as the present; indeed in order to prevent costly, slow multiplicitous litigation (with the danger of inconsistent results), they demand it. The Supreme Court has recently held that "Under the Rules, the impulse is toward entertaining the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged." United Mine Workers of America v. Gibbs, 1966, 383 U.S. 715, 724, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218, 227. Against such powers and policies, the state restriction on joinder cannot stand.
III. The defendants claim that the $100,000 verdict for the wrongful death of Mr. Mills was excessive.
The only evidence concerning Mr. Mills's earnings is from Social Security records. This is apparently an incomplete record, showing intermittent earnings from 1956. This evidence shows that Mills's earnings fluctuated. In the last six weeks or so before his death, Mills earned at about the rate of $616 per month. During the last quarter of 1962, he earned at the rate of about $754 per month. Other periods show lesser earnings. In addition, there was testimony by Edward H. Walsh, an associate of Mills during Mills's last employment. Walsh testified that Mills was a competent salesman who could earn $15,000 a year, and that Mills had potential for higher achievement as a manager (at $25,000) and as an executive (at $50,000).
Mills was 48 when he died. The defendants introduced into evidence a mortality table indicating that Mills's life expectancy was 22.5 years; they also introduced an annuity table for computation of the present value of Mills's life. The annuity table discounts at a rate of 7 per cent in finding present value. These tables are suggested by Georgia law, but are not binding on the jury. See Book 32, Ga.Code Ann. at p. 458, 460, 461-468. E. g., Swift & Co. v. Lawson, 1957, 95 Ga.App. 35, 97 S.E.2d 168. Using these tables, if Mills's income is figured at the monthly rate of $616, the present value of his life was about $74,385. If the $754 figure is used, present value is $90,997. If the $15,000, $25,000 and $50,000 annual rates are used, the present values, respectively, are about $150,780, $251,300, and $502,600.
Defendants strenuously argue that the $616 and $754 monthly earning figures do not form a reasonable basis for computation because Mills worked only sporadically and his average earnings were much lower. In so arguing, however, defendants ignore the testimony concerning the future potential earning power of Mills. Past earnings are indicative but not conclusive, and defendants would have us stare fixedly at the past with no thought of change in the future. The jury did not have to ignore the possibility of future increases in earnings, when testimony which it could believe supported such a hypothesis. The jury came nowhere near stretching that evidence to the limit. If the jury were restricted to the past for its answers, its computation of loss might have to be purely arithmetic; but the jury may look forward as well as backward, as long as it relies on such relevant and appropriate evidence as is available. In personal injury and death cases, court and jury deal with the inchoate, the intangible, the destroyed potential of tomorrows. To ask the jury to be finite about such a future is neither realistic nor is it a judicially sensible
The question of whether a jury verdict may be set aside for insufficient evidence is one of federal rather than state law.
Shirey v. Louisville and Nashville R. Co., 5 Cir. 1964, 327 F.2d 549, 552. "We must determine whether the state of the proof is such that reasonable and impartial minds could reach the conclusion the jury expressed in its verdict." American Casualty Co. of Reading, Pa. v. Myrick, 5 Cir. 1962, 304 F.2d 179, 182, 96 A.L.R.2d 1352. In the recent case of Prudential Insurance Co. of America v. Schreffler, 5 Cir. 1967, 376 F.2d 397, 399 (decided April 25, 1967) we quoted the following passage from the Eighth Circuit's opinion in Westborough Country Club v. Palmer, 8 Cir. 1953, 204 F.2d 143, 147:
This language is again relevant here. To hold that the verdict as to Mr. Mills is based on insufficient evidence, we would have to demand that the jury be restricted to defendants' interpretation of the evidence. This we may not do. Defendants rely heavily on our case of Complete Auto Transit, Inc. v. Floyd, 5 Cir. 1958, 249 F.2d 396, cert. denied, 1958, 356 U.S. 949, 78 S.Ct. 913, 2 L.Ed. 2d 843. But, as is obvious from a reading of our opinion, in that case no evidence in the record could possibly have justified the verdict.
IV. Defendants similarly argue that the evidence was not sufficient to support the jury's award of $100,000 for the wrongful death of Mrs. Mills. Again they rely on Complete Auto Transit, Inc. v. Floyd, supra, and again their reliance is misplaced. Here the distinguishing factor is the presence of the testimony of Chong Soo Pyun, a professor of economics at Mercer University. Professor Pyun testified as an expert on the value of the life of a hypothetical house-wife in Mrs. Mills's position had she lived. Without valuing the immeasurables of love, moral guidance, inspiration, encouragement, and the other uncataloguable aspects of motherhood, Professor Pyun valued the mother's household services from the time of the accident until the youngest child arrived at the age of completing college. From
To value the work outside of the home, Professor Pyun chose 24 hypothetical occupations which he felt would be open to a woman of Mrs. Mills's age, education, and employment history. The professor randomly chose five of these 24 for computation of an average, and he testified that the error involved in such a choice was at most 5 per cent, which he characterized as standard deviation. Finally, the professor testified that the value of the household services over the 11 year span, reduced to present value by the 7 per cent discount, was $69,852. The value of the outside employment, similarly discounted, was $31,948. The total of these sums is $101,800.
The defendants offered no testimony in rebuttal of Professor Pyun's. They now contest its adequacy on several grounds.
First, the defendants argue that placing monetary value on the household services of a mother is "peculiarly a function of a jury", and that no direct evidence of that value by expert or non-expert should be admitted, as such admission would invade the function of the jury. The defendants admit that there is no direct support in the law for such an argument, but they claim that it can be deduced from Georgia cases which hold that direct evidence of the value of the wife's services is not necessary for recovery of damages. There are such cases (E. g., Collins v. McPherson, 1954, 91 Ga.App. 347, 85 S.E.2d 552; Central of Georgia R. Co. v. Keating, 1932, 45 Ga.App. 811, 165 S.E. 873; see Blue's Truck Line v. Harwell, 1938, 59 Ga.App. 305, 200 S.E. 500), but the defendants' conclusion does not follow. The cited Georgia cases had to deal with situations where there was quite clearly a loss, but no testimony available to evaluate it. But the Georgia courts have expressly sanctioned use of opinion evidence and expert testimony to evaluate services rendered, where that was possible. Western & A. R. Co. v. Townsend, 1926, 36 Ga.App. 70, 135 S.E. 439. In the leading case of Standard Oil Co. v. Reagan, 1915, 15 Ga.App. 571, 84 S.E. 69, the trial court had accepted direct evidence of dollar value of a wife's services in the home for the duties of nurse, cook, housekeeper, and seamstress. The Georgia Court of Appeals found that the testimony was correctly admitted. See Shermer v. Crowe, 1936, 53 Ga.App. 418, 186 S.E. 224.
From the cases it appears clear to us that the Georgia courts tend to accept whatever probative evidence can be offered, in the attempt to compensate for the loss in a just manner. The expert testimony in the present case is a more modern and scientific version of that accepted in Standard Oil Co. v. Reagan, supra. Professor Pyun's construct, based on scientific study, investigation, and analysis, was more nearly complete than what was available in the earlier days of Standard Oil Co. v. Reagan. The brittle, unemotional calculus computed by Pyun was what the sons would have had to pay for services to be rendered by an ersatz mother. Such modern scientific testimony is more reliable than
Second, the defendants argue that Professor Pyun based his testimony on a standard of recovery not authorized by the statute. The statute reads:
The defendants argue that, because Pyun based his computation on the cost of replacement of Mrs. Mills's services, he calculated damages assuming that the statute's standard was compensatory, whereas, they argue, the Georgia cases show that the statute is actually punitive. This argument sounds anomalous and is anomalous. The basic factor of damages in this case is that the value of the services of Mrs. Mills is best expressed by what it would have cost Mr. Mills and the Mills children to replace her services. See Complete Auto Transit, Inc. v. Floyd, supra, and its complete discussion of the applicable Georgia cases, 249 F.2d at 399-400. The punitive aspect of the statute is its last phrase: "without deduction for necessary or other personal expenses of the decedent had he lived." This phrase means that the standard of recovery is not confined to the actual pecuniary loss of the plaintiff, but includes the full monetary value of the life of the deceased, no matter how much of that value would have found its way into the hands of the plaintiff had the deceased lived. This principle is explained by the following quotation from Collins v. McPherson, 1954, 91 Ga.App. 347, 351, 85 S.E.2d 552, 555-556. In that case the parents sued for the wrongful death of their child. The court said:
Recovery in that case was not limited to the parents' actual pecuniary loss. In the present case, this punitive provision of the statute is almost irrelevant, because all of Mrs. Mills's services as a mother went without deduction for the benefit of her family. See Willitt v. Purvis, 5 Cir. 1960, 276 F.2d 129.
Thirdly, the defendants claim that it was error to allow Professor Pyun to testify that he thought that the 7 per cent discount rate used in Georgia for calculating present value was excessive. Professor Pyun testified that he thought a 4 per cent rate was more realistic, and stated at one point that the present value of Mrs. Mills's services as a mother (excluding her outside earning abilities), if discounted at the 4 per cent rate, yielded a present value of $105,547. However, this only happened once, and upon admonishment by the trial judge, Pyun gave the sum arrived at by discounting at the higher rate ($69,852), and gave all subsequent figures using the proper method. Certainly considering that the Georgia cases uniformly hold that the 7 per cent rate is only suggested and not mandatory, and that the offending statement was immediately corrected and never repeated, if there was error, it was harmless. We hold that the testimony of Professor Pyun was proper, and sufficient to support the verdict.
V. By way of valediction we consider defendants' taking an abhorrent view of the closing arguments to the jury by plaintiffs' counsel. In the record of plaintiffs' counsel's closing argument we find the following:
In motions for judgment n. o. v. and a new trial this argument was urged as erroneous. We are here governed by federal law, as expressed in Johnson v. Colglazier, 5 Cir. 1965, 348 F.2d 420, 422-423:
Yeargain v. National Dairy Products, 8 Cir. 1963, 317 F.2d 779.
The argument objected to here is known among lawyers and judges as the "golden rule" argument. While federal law controls us, it is not impertinent to remark that no Georgia case condemns this argument even though we are certain that Georgia lawyers in state courts use it and have used it, the memory of man running not to the contrary. The objection to it is no fixed constellation in our judicial firmament, and much can be said against its immutability. See Judge Brown in dissent in Johnson v. Colglazier, 5 Cir. 1965, 348 F.2d 420, 425-430.
The "golden rule" argument is supposed to be erroneous because it requests the jury to put itself in the plaintiff's shoes in computing damages when the jury should compute the damages objectively. F. W. Woolworth Co. v. Wilson, 5 Cir. 1934, 74 F.2d 439, 98 A.L.R. 681. But the jury box is not an isolation booth where one's past is non-existent. A juror's oath does not obliterate his past life and it is not supposed to drop an iron curtain over everything save that which emanates from the courtroom. The mention of the proposition that one way to attempt to measure damages is to imagine one's self in the plaintiff's position seems to us a superfluous suggestion to a reasonably intelligent juror. He is sure to think of it himself. The best that can be done when the suggestion is made is for the court to indicate, as it did here, the legal impropriety of the notion. The serious problem is not in the transmission of this method for computation of damages. We do not think that can be stopped. The real danger is that the sympathy and the feelings of the jury will be encouraged and aroused so that the jury will decide the case and award damages out of relation to actual fault and actual damage. Judge Sibley's opinion makes this the point of this Court's condemnation of the "golden rule" argument in F. W. Woolworth Co. v. Wilson, supra, 74 F.2d at 443.
In the present case the argument was objected to immediately and immediately corrected. After this correction, the trial judge devoted the first portion of his charge to explanation of the error and a detailed admonishment of the proper standard. These corrective measures were not taken in Colglazier, supra, or Woolworth, supra. They were not taken, either, in Maryland Casualty Co. v. Reid, 5 Cir. 1935, 76 F.2d 30, 32-33, where Judge Hutcheson said:
The close supervision repeatedly demonstrated by the trial judge in the present case corrected the error to the extent correctable; and the trial judge was within his discretion and his peculiar competence in assessing the error as not sufficiently inflammatory to call for a new trial. Pasotex Pipe Line Co. v. Murray, 5 Cir. 1948, 168 F.2d 661.
ON PETITION FOR REHEARING EN BANC
Before BROWN, GOLDBERG and AINSWORTH, Circuit Judges.
The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, Rule 25(a), subpar. (b), the Petition for Rehearing En Banc is denied.