Janson v. Hughes , 309 Pa. Super. 399 ( 1982 )

LIPEZ, Judge:

Plaintiff¹ commenced this trespass action for injuries sustained when the vehicle he was operating, while stopped at a red light, was struck from the rear by defendant Robert F. Hughes, who was driving a vehicle owned by his employer, defendant Chemargro Corporation. The jury awarded plaintiff $5,000. Plaintiff moved for a new trial on the basis of several issues related to damages. After denial of those motions and entry of judgment, plaintiff took this appeal, in which he has abandoned all but one of his claims—that the trial judge erred in precluding the jury from considering impairment of plaintiff’s earning power as an element of damages. We agree with this contention, and hence we reverse and grant a new trial limited to the issue of damages.

The test for impaired earning capacity is whether the plaintiff’s “economic horizon” has been shortened. See generally Frankel v. Todd, 393 F.2d 435, 438-40 (3d Cir.1968), cert. den’d, 393 U.S. 855, 89 S.Ct. 137, 21 L.Ed.2d 120 (discussing Pennsylvania Supreme Court cases which developed this standard). The court below held that there was no evidence that plaintiff’s economic horizon had been limited in any way. We disagree. One of plaintiffs medical experts, Dr. Snedden, testified that some symptoms of plaintiffs back and neck injury were permanent, and as a result plaintiff would always have to restrict his occupational activities in the future. Plaintiff would be unable to do heavy work, such as lifting, because it would undoubtedly cause his symptoms to flare up and could lead to total disability. Plaintiffs other medical expert, Dr. Russo, concurred in the findings of permanent injury and plaintiffs resulting inability to do certain types of work.

The testimony of Doctors Snedden and Russo was clearly sufficient to raise a jury question as to impairment of plaintiffs earning power. See Wright v. Engle, 256 Pa.Super.Ct. 321, 326-27, 389 A.2d 1144, 1146-47 (1978); Frankel v. Todd, supra. In holding to the contrary, the trial judge did not rely on any authority in his opinion, although in ruling on the question at trial, he had stated that his decision was supported by Baccare v. Mennella, 246 Pa.Super.Ct. 53, 369 A.2d 806 (1976). That case is easily distinguishable, since it merely held that “because there was no evidence regarding the probability that the disability would persist in the future the jury could not consider any future loss of damages.” Id., 246 Pa.Superior Ct. at 58, 369 A.2d at 808. Here such evidence was provided by plaintiffs medical experts.

Defendants argue that evidence of permanent injury by itself is insufficient, and the evidence must also show that the injury will prevent the plaintiff from engaging in a specific type of work. Plaintiffs medical experts, Doctors Snedden and Russo, also met this latter requirement, because of their specific testimony that plaintiffs injury would preclude his engaging in work involving heavy lifting. While this evidence, like most evidence of impairment of earning power, is imprecise and difficult to evaluate, it is nevertheless sufficient under the Pennsylvania Supreme Court cases discussed in Frankel v. Todd, supra, cited with approval in Wright v. Engle, supra, 256 Pa.Super.Ct. at 327 n. 2, 389 A.2d at 1147 n. 2.²

Judgment reversed, and a new trial, limited to damages only, is ordered.

PRICE, J., filed a dissenting opinion.

1 . Throughout these proceedings, the appellants and appellees have referred to the injured party as if he were the sole plaintiff, although technically his father was also a plaintiff because the injured party was a minor when the action was commenced. For the sake of simplicity, we are following the same practice as the parties.

2 . A dictum in Wright v. Engle, 256 Pa.Super.Ct. 321, 327 n. 3, 389 A.2d 1144, 1146 n. 3 (1978) purported to distinguish Kmiotek v. Anast, 350 Pa. 593, 39 A.2d 923 (1944) and Carroll v. Pittsburgh Railways Company, 200 Pa.Super.Ct. 80, 187 A.2d 293 (1962) on the ground that in those cases there was positive medical testimony that the injured plaintiff had recovered, while such was not the case in Wright. However, this does not mean that Kmiotek and Carroll stand for the proposition that the plaintiff can never recover for impairment of earning power if the defense presents evidence that the plaintiff had recovered. Kmiotek held that it was error to instruct the jury that the permanence of plaintiff’s condition may be taken for granted where there was conflicting medical testimony. The Kmiotek Court reasoned that "[t]he jury was not bound to accept the opinions of the plaintiff’s physicians.” 350 Pa. at 600, 39 A.2d at 926. Of course, it does not follow that the jury is bound to accept the testimony of the defense witnesses. To the extent the dictum in footnote 3 in Wright v. Engle, supra, might appear to suggest the contrary, it is totally inconsistent with the numerous Supreme Court holdings discussed in Frankel v. Todd, supra. That discussion in Frankel is cited with approval in the immediately preceding footnote in Wright. 256 Pa.Super.Ct. at 327 n. 2, 389 A.2d at 1146 n. 2. This should make it clear that whatever the purpose of the dictum in footnote 3 in Wright, it is not intended to indicate any weakening of the completely settled principle that factual conflicts in testimony are exclusively for the jury to resolve. In deciding whether to admit plaintiff’s evidence of impaired earning power, the court must assume that properly admissible evidence is true, and determine only whether that evidence is legally sufficient to raise a jury question. The legal sufficiency of plaintiff’s evidence does not depend on whether the defense puts on opposing evidence. Thus, in Carroll v. Pittsburgh Railways Company, supra, this court held that there was no basis for a claim of impaired earning power because plaintiff’s evidence by itself was legally insufficient, and not because the defense presented contradictory evidence.