#### Rufus Finley, as Guardian ad Litem for Theodore Finley, an Infant, Appellant, et al., Plaintiff, v. 102-106 West 143rd Street Realty Corporation, Respondent and Third-Party Plaintiff. Colde Exterminating Co., Inc., Third-Party Defendant.

Supreme Court, Appellate Term, First Department,

June 17, 1957.

*Stanley M. Goldberg*for appellant.

*Jacob L. Bothstein*and *Bernard Eelfenstein*for respondent.

*Per Curiam.*

The occasion for this opinion is that the ringing periods of the dissent require the majority to make some explanation of the grounds of their decision to escape the imputation of being unable to keep up with the social advances of the law. Possibly also we speak in this respect for the court below who in the situation is voiceless but whose action we have affirmed.

The plaintiffs are a father and his infant son who sued their landlord for negligence. The negligence complained of was that *368each of these plaintiffs was bitten by a rat whose presence in their bed was accounted for by the failure of the defendant to maintain the premises in a proper manner. The fact and the cause were sufficiently established and no one complains of error in the jury’s finding in favor of the plaintiffs. The difficulty is in the amount of the award of damages. The jury’s verdict was for $500 in favor of the father and $3,000 for the son. The trial court set this verdict aside unless it was stipulated that the verdict for the infant be reduced to $750.

We believe that disposition to be entirely proper. The injuries of the father and the son were identical. Each has a permanent sear, but each scar is the result of two punctures of pinpoint diameter and as early as the time of the trial were visible only on the closest inspection. While a ratbite is a source of possible infection no disease or ill effect resulted. Our colleague points to possible psychic trauma resulting to the boy from this experience. But no such claim was pleaded in the complaint, alleged as item of injury in the bill of particulars or proved at the trial. In fact the absence of all such sequelae was proved by the plaintiff’s physician who attended the boy. The jury has appraised the damage to the father including medical bills, at $500. An award six times greater for the same injuries without medical expense is not sustainable.

It is observed in the dissent that it is the duty of landlords to keep their buildings fit for human habitation and the insensitivity of absentee landlords is not to be condoned. We grant the statement and though admiring its phrasing cannot discern its relevance. Liability is not the question. Are we to imply that excessive damages are to be approved as our contribution to a campaign for improving conditions in housing of minrtTmrn standards ? The parade of legal progress may have passed us by but our impression was that damages in personal injury cases are awarded to compensate the plaintiff and neither to punish the defendant nor to educate him to a sense of his responsibilities. The infliction of penalties has, up to now, been considered a province of the penal laws.

Also our colleague deprecates setting aside the jury’s verdict. This attitude is based on a statement that upon proper evidence they reached a just assessment of damages. This begs the question. Further it is claimed that juries agree with the judges’ decisions in 95% of the cases, that setting aside verdicts is becoming too common and represents a distrust of juries. No source of this interesting statistic is given but assuming its accuracy it is hard to see how almost complete agreement can engender an instinctive distrust. The court below as all trial *369courts is admonished to steer the jury to the right result by “ judicial leadership.” Leadership as a matter of definition carries the implication of a goal and the direction toward that goal. The concept is confusing and we fear at odds with the accepted ideal of judicial conduct. By ‘1 leading ’ ’ the jury to the just result (that is what the judge believes is the just result) he must first arrive at the correct appraisal of the facts, thereby supplanting the jury in its primary function. And to convey his impressions without the sacrifice of impartiality calls for greater talents than most of us possess.

In any event the Legislature has not yet seen fit to replace section 549 of the Civil Practice Act, nor to limit its application beyond what its own terms provide. In a case where, as here, it applies, the judge has a duty to invoke its provisions. This is what was done here and we accordingly affirm.

The order so far as appealed from should be affirmed, with $10 costs.

Hobstadtbb, J.

(dissenting). I dissent. In the early morning of New Year’s Day, 1954 little Theodore Finley, then 3% years old, was sleeping with his parents in their bed in a small, shabby flat in Harlem. Attacked and bitten on his face by a large and savage rat, the child screamed. His awakened father, also bitten by the rat, found blood on the boy’s head and face. After washing off the blood, he took his terrified son to a hospital where he was given an anti-tetanus injection and his wounds cauterized. Thereafter, the boy was treated by a private physician. The wound over the right eye has left the child with a permanent visible scar.

Since the occurrence the child has suffered fright and jumped in his sleep; what psychological scars result from the horrifying experience cannot be measured with precision. Moral disfigurement has its roots in the early formative years; the memory of so terrible and macabre an experience as a rat bite can sear the soul of a child of tender age.

The defendant’s liability was clear. In the Finley flat there were holes everywhere; the landlord had been repeatedly advised but no repairs were made. Garbage disposal was neglected by a slovenly superintendent, and refuse was permitted to accumulate in the halls and alleyways; attracting rats and roaches that made frequent appearance in and about the premises. Nothing was done by the defendant though frequently notified. The evidence demonstrates that the landlord suffered his property to become one of the mean and squalid tenements of a city slum.

*370The insensitivity of absentee landlordism which debases the homes of the poor should not be lightly condoned. Those who own and profit from dwelling places must keep them fit for human habitation. A building infested with rodents does not meet this standard, either morally or legally.

On a compelling basis, the jury adjudicated the liability of this landlord; and under proper instructions, assessed a just measure of damages. It was not within the competence of the Trial Judge to nullify their determination; and it is not a proper exercise of our province to sustain his action.

In this area, judicial action will find its safest guide in humility and self-restraint. If the jury system is to serve its intended purpose, every presumption must operate in favor of the jury’s verdict, especially a finding of'the amount of damages for a personal injury. Neither a trial judge nor an appellate court is better qualified than a jury to assess accurately the measure of mischief of a ratbite. This boy has not alone a permanent visible scar over his eye, but the lasting memory of a horrific experience. So far as the injury he suffered can be compensated in dollars and cents, we should accept the jury’s estimate of the amount he should receive. Because it is not so disproportionate to the harm done as to lack rational basis or to shock one’s sense of right, the jury’s pronouncement should be final.

The distrust of juries expressed in and outside our profession, on occasion, is not warranted. In deciding who is right and who is wrong the jury’s judgment is as good as, and sometimes apt to be better than, that of the judge. Experience in Trial Term has been that in 95% of the cases the same result is achieved by juries as by the court without a jury. “We are not obliged to make the assumption that the jury box was filled by men totally devoid of reasoning power and wholly lacking common sense,” the Court of Appeals has admonished us. Indeed, the “ rough justice,” so-called, which a jury may dispense, more nearly corresponds to the true justice of the cause than the sometimes over-refined adjudication of a court without a jury. That is why, perhaps, even in equity courts, juries may be invoked to “ inform the conscience ” of the chancellor.

The spate of verdicts set aside by both trial courts and appellate tribunals is to be deprecated. “ There is no objective standard to apply” the decision must come “to rest on the sense of the judge addressed to the reasonableness of the jury’s verdict; but this in turn is a subjective process strikingly similar to the jury’s own judgment of the facts in the first place.” *(Rapant*v. *Ogsbury,*279 App. Div. 298, 299.) All too often *371misgivings directed at a particular verdict are a reflection of an unconscious suspicion of juries generally. But the judicial system can be as strong as the judge. Judicial leadership can obviate the necessity of setting aside a verdict. If the judge retains *“*creative command ” of the course of action, the jury will instinctively absorb the objective direction it is his function to provide.

In short, no trial or appellate court, in the purported exercise of legal power, has the moral right to upset a jury verdict unless it “ startles by its absurdity ” and does violence to the *“*compulsion of reasonable necessity ”,— in effect, unless the result is one which no reasonable man could have reached *(Rapant*v. *Ogsbury, supra,*p. 300). This verdict cannot be so regarded. The order should be reversed and the verdict reinstated.

Steuer and Hecht, JJ., concur in *Per Curiam*opinion; Hoestadter, J., dissents in opinion.

Order affirmed, etc.