Jung Keun Kim v. Dale Lee Hansen

PHILLIPS, Judge.

Three of the assignments of error plaintiff brought forward in her brief are manifestly without merit and only need to be mentioned. One is that the trial judge erred in instructing the jury on proximate cause. The contention is not that the instruction given was legally incorrect, but that it was incorrect to charge on proximate cause at all since negligence was stipulated. But it is elemental law that a tort feasor is liable only for those damages which proximately flow from his tort, King v. Britt, 267 N.C. 594, 148 S.E. 2d 594 (1966), and it was not only proper, it was necessary for the court to charge thereon. The other two assignments relate to the court’s denial of plaintiffs motions to set the verdict aside on the ground that the damages awarded were inadequate and that the verdict was contrary to the greater weight of the evidence. Both of these motions were addressed to the judge’s sound discretion, Worthington v. Bynum, 305 N.C. 478, 290 S.E. 2d 599 (1982), and in denying them we see no indication that his discretion was abused.

But plaintiffs other assignment of error —that the court erred in refusing to charge the jury that plaintiff might have suffered an earnings or earnings capacity loss up to the time of trial — has merit. There was evidence that except for defendant’s negligence plaintiff would have earned wages as a schoolteacher during the four years or so after the accident and preceding the trial that she and her husband lived in New Jersey. Her doctor there testified in substance that plaintiff had been disabled because of headaches and back pain since he first examined her in July 1982; and her husband testified that as a qualified, experienced elementary schoolteacher plaintiff could have readily obtained a teaching job at $20,000 a year in one of the many New Jersey schools in their area that required Korean language teachers, but did not do so because of her back pain and headaches. The transcript indicates that the trial judge refused to instruct the jury on this aspect of the evidence because plaintiff was not employed when the collision occurred and had not been employed since coming to this country. Yet on the same evidence the court properly instructed the jury that plaintiffs damages could include compensation for loss of earning capacity during the years that lay ahead. In doing so, however, the court accentuated its error in failing to charge as to the impairment of plaintiffs earning capacity in the past by explicitly and pointedly limiting the jury’s consideration of earning capacity and earnings losses to those that might occur in the future. “The element of loss of time is held properly to include only such loss as has accrued up to the time of trial; a subsequent loss of time is to be included in a recovery for decreased earning capacity.” 25 C.J.S. Damages Sec. 38, p. 721 (1966). Both loss of time and loss of earning capacity are recoverable when established by evidence, since in cases like this the plaintiff, if entitled to recover at all, is entitled to recover all damages, past and prospective alike, that result from a defendant’s negligence. Dickson v. Queen City Coach Co., 233 N.C. 167, 173, 63 S.E. 2d 297, 302 (1951). That plaintiff was not employed when she was injured and had not been employed for wages since coming to this country does not eliminate the fact that the jury could have properly found from the evidence that except for defendant’s negligence she would have obtained and held a financially remunerative schoolteaching job during some part of the four and a half years preceding the trial of the case. In Johnson v. Lewis, 251 N.C. 797, 112 S.E. 2d 512 (1960), our Supreme Court held that it was proper to instruct the jury both as to the plaintiffs lost time and earning power, even though there was no evidence that she had ever worked except as a housewife; in so doing the Court observed that the plaintiff was entitled to work if she wanted to, and whether she did or not if her capacity to work and earn money had been impaired, she had suffered a substantial loss for which compensation was due. Though the small amount of damages awarded indicates that the jury did not find that plaintiff was permanently injured and disabled because of the collision, the failure to charge as to her evidence of lost time was nevertheless prejudicial. The jury could have found that even though her injuries would not prevent her from working and earning money in the future they had prevented her from earning money in the past. Furthermore, the apparent conclusion that plaintiff was not permanently injured and would not suffer any earning capacity loss in the future could have been affected by the jury not being permitted to consider any such losses as might have occurred in the past. For after being told in effect that earning capacity losses in the past when the effects of the injury may have been more severe were not compensable, it would be very difficult, indeed, for any jury to conclude that compensation was due for more uncertain losses in the future.

New trial.

Judges Cozort and Greene concur.