DocketNumber： 37,182
Judges： Frank T. Gallagher
Filed Date： 4/3/1958
Status： Precedential
Modified Date： 11/10/2024
(dissenting).
I respectfully dissent from the conclusions reached in the majority opinion. While the majority concedes that the record contains evidence of the plaintiff’s ability to do general housework before the accident, it holds, nevertheless, that “there is no evidence to show the value of such general housework,” and that it was therefore error for the trial court to instruct the jury that plaintiff was entitled to recover for loss or impairment of earning capacity.
From the evidence in this case the jury could have found that the permanency of the plaintiff’s injury, which manifests itself in the pain she will have the rest of her life, not only impairs her earning capacity but deprives her of the ability to carry on the work she performed prior to the injury. I believe that the jury could have determined the value of the impairment of her earning capacity from the evidence before
(1) Evidence of past wages.
The majority distinguishes LeMay v. Minneapolis St. Ry. Co. 245 Minn. 192, 71 N. W. (2d) 826, by pointing out that “in that case, the jury had before it evidence of the plaintiff’s past earnings, which is missing here. As a result, the issue there concerned the loss of future earning capacity, due to the severity of her injury, in the light of past earnings.” (Italics supplied.) In the LeMay case, the plaintiff had worked for a salary prior to the accident and submitted the amount of her salary as evidence of the impairment of her earning capacity. To require the plaintiff in this case to submit the kind of evidence offered in the LeMay case is to preclude her from recovering for the impairment of her earning capacity. Such evidence was impossible to obtain. This plaintiff could not say with definiteness what the value of her services were in dollars per day or week. At the time of her injury she maintained a home in which she rented three rooms. She did the general housework, including looking after the rooms, as well as certain repair work and tasks about the yard. It is unrealistic to assume that she would have maintained a system of accounts from which she could accurately separate, from the rent she received, the profits on the capital invested in the home and the money she received in payment of her services as a housewife.
(2) Testimony on the value of her services.
It might, however, be argued that the plaintiff or some other witness could have testified to some dollar figure of the value of her services prior to the injury. Such evidence might have the effect of misleading the jury rather than helping it. The damage sustained by the plaintiff was in an area in which the jury should be permitted to form a judgment based on their own common-sense and experience. The jury was as well able to determine the value of the housework done by the plaintiff as she was herself since she had been self-employed in her roominghouse for some time and had not worked for any wages on which she could base an estimate. Moreover, it is unrealistic to expect her counsel to call in an “expert” to testify as to the value of her services. Such testimony as to the “market value” of the work plaintiff claims to have had the capacity to do would be of doubtful value. The value of housekeeping services varies greatly depending on the character of the work to be done; the personality, reliability, and the ability of the employee; and the circumstances of the employer. I do not think plaintiff should be required to resort to such weak and doubtful contrivances of proof.
It is my view that the jury had before it sufficient proof, in fact, the best proof that could be expected, to fix damages as to “loss or impairment of earning capacity” so as to award a verdict for the plaintiff pursuant to the instructions of the court. Such a view does not conflict with our holding in Hallada v. G. N. Ry. 244 Minn. 81, 69 N. W. (2d) 673, which decision considers at length the elements of damage to be considered in reviewing the issue as to whether or not a verdict is excessive.
It should be acknowledged that requirements of proof of damages vary with the possibilities for making a reasonably exact estimate in terms of money. In cases where an employed person is injured, his past salary represents a measure by which impairment of his future earnings may be judged. Where, however, the law is concerned with a housekeeper, a retired person, or a minor, the mere fact that such person does not have a past earning record to serve as a guide in determining future impairment of his earning capacity should certainly not stand in the way of a recovery. In the latter instance, the jury should be permitted, upon evidence as to the plaintiff’s age, life expectancy, occupation, health, habits, the kind of work performed before and after the injury, and the physical capacity of the plaintiff to perform his work before and after the time of injury, to determine the amount of damage sustained. Since the value of future earning capacity depends on probabilities and
Proof of damages in negligence cases should not be limited by precise rules which have strict application in every case regardless of the circumstances of the plaintiff’s occupation.
“* * * the law exacts only the kind of proof of which the fact to be proved is susceptible.” 25 C. J. S., Damages, § 87, p. 623.3 Courts should not require proof which it is impossible to obtain. Stenshoel v. G. N. Ry. Co. 142 Minn. 14, 170 N. W. 695, is cited as authority for the following statement from 25 C. J. S., Damages, § 86, p. 618:
“* * * Where plaintiff is engaged in such a business that there is no rule by which the value of the time lost from it may be well ascertained, the jury may in their discretion, from all of the facts before them, award an amount sufficient as reasonable compensation for the time lost, and a similar rule, it seems, will apply in a case where plaintiff loses time as a result of his injuries, but is unable to prove its value because he was not at the time of the injury engaged in any service or business.”
See, also, Dahlberg v. Minneapolis St. Ry. Co. 32 Minn. 404, 21 N. W. 545; Carlson v. Naddy, 181 Minn. 180, 232 N. W. 3; Martin v. Tracy, 187 Minn. 529, 246 N. W. 6; Fredhom v. Smith, 193 Minn. 569, 259 N. W. 80. While in the cases just cited the precise issue with which we are concerned was not argued, they are, nevertheless, on their facts indicative of what I believe has been quite generally the accepted practice before our trial courts in permitting juries to determine damages for impairment of future earning capacity in cases where the circumstances of the plaintiff do not permit proof of actual earnings prior to the injury and evidence of value is not helpful. For the foregoing reasons, I respectfully dissent.
Annotation, 122 A. L. R. 304, citing Fredhom v. Smith, 193 Minn. 569, 259 N. W. 80, states: “ ‘In an action to recover for personal injuries in measuring the loss of earning power of one engaged in business for himself, no evidence is admissible concerning the profits from capital
It does not appear to me that there is before the court the question of
“* * * An award for diminution of prospective earning capacity may be made, although there is no direct evidence as to the amount of loss.” 25 C. J. S., Damages, § 87, p. 623.