Baxter v. Baker ( 1969 )

GOODWIN, J.

The defendant in a personal-injury case appeals from a judgment for the plaintiff, assigning error to an instruction that authorized the jury to award the plaintiff “special damages” for “lost earnings,” when the evidence showed that the plaintiff at the time of her injury was not employed for wages, but was a college student.

There is no substantial disagreement, either between counsel or among the members of this court, with reference to the compensability of the loss of earning capacity, by whatever name it is called. All agree that any person, employed or unemployed, whose earning capacity has been impaired through the negligence of another, has a right to recover money damages for the impairment of his earning capacity. All likewise agree that this right of recovery is no less important to an injured person who was looking for a job than to an injured person who had one. Furthermore, losses calculated from the date of the injury to the date of the trial are felt just as keenly by the injured person as losses calculated from the date of the trial until some unspecified time in the future. The difficulty lies in framing instructions for the jury on its function in dealing with these losses.

For convenience, the courts of this state have followed the practice of instructing that impaired earning capacity is compensable as “general damages.” Lost wages can be covered in an instruction on “special damages” computed for the period from the date of injury to the date .of the trial,. but .only if the plaintiff proves that he was employed at a fixed wage at the time of injury. See Fields v. Fields, 213 Or 522, 537, 307 P2d 528, 326 P2d 451 (1958). Whether or not a plaintiff was employed at the time of his injury, the jury is told that impaired earning capacity from the date of the trial on into the future is to be included within those losses compensable as “general damages.” See Oregon Jury Instructions for Civil Cases, numbered 30.02 and 30.03, promulgated by the Oregon State Bar. These instructions, with minor modifications as given' from the bench in an actual trial, are set out in Martin v. Hahn, 252 Or 585, 451 P2d 465 (1969). Both instructions were given in substance, in the case at bar.

After having the benefit of reargumeiit in this and the companion case (Martin v. Hahn), a majority of this court has concluded that the present method of instructing juries should not be disturbed. The present method, when uniformly applied, is understood by the bench and bar, and does not appear to have worked injustice. The only caution necessary is for courts to refrain from instructing on special damages in inappropriate cases.

Under our present instructions, a plaintiff who was not employed on the day of his injury does not receive the strategic advantage of an instruction calling the jury’s attention to “special damages” for “lost wages.” But his substantive right to recover for the impairment of his earning capacity can be fully protected by an instruction that the jury is to consider any impairment of earning capacity as a loss compensable under general damages. Evidence of such impairment can be produced during the trial and exploited on argument just as is done with other evidence of losses compensable as general damages. To the argument that the working plaintiff is thus given an advantage not shared by his equally deserving but temporarily unemployed fellow plaintiff, the existing case law says in effect that the law takes the two plaintiffs as it finds them.

The majority of this court is not convinced that the evil in an instruction on special damages is so great as to warrant wholesale overruling of former decisions. It is possible that a clean sweep at this time might improve the trial practice, but we do not wish to upset a settled practice which appears to be working in order to test a speculative improvement. While we decline to change the rule at this time, we are equally reluctant to extend the giving of an instruction on special damages into situations authorized neither by logic nor by precedent. A plaintiff who was not earning wages at the time of injury is not entitled to the instruction on special damages. Accordingly, we must hold that it was error to give an instruction singling out for special jury consideration an item of “lost wages” as “special damages” in a ease in which the evidence proved merely a loss of earning capacity, a matter that was fully compensable under the instruction for general damages.

Inasmuch as we cannot say with certainty that the error in the case at bar did not affect the verdict, we must reverse and remand for a new trial. The defendant has advanced a number of other assignments of error, but, since they deal with trial tactics and raise questions of the kind that are within the discretionary control of the trial court, we will not extend this opinion by a discussion of points that may not be raised again. We assume that the ease can be properly tried without undue necessity for admonitory intervention from the bench.

Reversed and remanded.