Alter v. Shearwood

April 23, 1924, Robert Shearwood, age 16 years, by his next friend, brought an action against Robert S. Alter to recover damages for personal injuries, due, as it was claimed, to the negligence of Alter in operating his automobile on Madison road, in the city of Cincinnati.

Plaintiff claimed, among other things, that he was confined to his home for a period of 6 weeks, losing his salary in the sum of $12 per week. He claimed damages in the sum of $25,000.

By his amended answer the "defendant admits that at said time and place he was guilty of negligence which was a proximate cause of whatever injuries plaintiff sustained." This admission left but one question for the jury to determine: The measure of damages Shearwood sustained by reason of the accident in question. The jury returned a verdict in favor of plaintiff in the sum of $9,000. It is now sought to reverse the judgment entered on that verdict, principally on the ground of error in the instruction of the court as to the measure of damages. The court used this language:

"The measure of his damages is compensation for the injuries received as shown by the evidence, and, in determining this amount, if any, you will take into consideration the nature and extent of his injuries, the effect of these injuries upon his ability to work and earn a living, the pain and suffering he has undergone, or will undergo, by reason of these injuries; the permanency of any of these injuries due to the accident; the effect of these injuries upon his health and body, all as shown by the evidence in this case, and award such amount as you, in your judgment, believe the evidence shows he is entitled to by reason of the injuries complained of."

There is no question but that part of the charge, "the effect of these injuries upon his ability to work and earn a living," was erroneous.

There is no evidence in the record that the boy was emancipated, nor as to the amount he was earning.

The plaintiff in error relies on the case of Hanna v. Stoll,112 Ohio St. 344, 147 N.E. 339, decided April 14, 1925, wherein the Supreme Court, in the second proposition of the syllabus, holds:

"Where impairment of earning capacity is pleaded as special damages, it is essential that evidence be adduced from which an estimate thereof may be made by the jury, and in the absence of any evidence upon the subject, it cannot properly be submitted to the jury as an element of damages."

There is no plea of special damages in the case at bar. Plaintiff below did plead that he was earning $12 a week, and that he lost this amount for a period of 6 weeks, but there is no evidence offered as to what he was earning either before or after the accident.

In Toledo Railways Light Co. v. Poland, 7 Ohio App. 397, at page 402, the court says, with reference to a charge to a jury in the loss of earnings of a minor:

"This part of the charge is erroneous in so far as it covered the period of his minority, there being no evidence in the case tending to show that Poland is entitled to receive and use his own wages during his minority."

On this ground, and from the facts that no evidence was offered as to his earning capacity, and that the charge covered his ability to work and earn a living from the date of the trial, we conclude that this part of the charge was erroneous. But, in view of the fact that there was no question of the liability of Alter, the jury could have been misled only as to the amount of the damage, based on earning capacity, that it could award.

The jury returned a general verdict, and we are not able to determine whether it was based solely on injuries and the pain and suffering, or was partially based on his ability to work and earn a living, but we must assume that the jury followed the instruction of the court and considered the effect of the injury on his ability to work and earn a living. In this view of the case, and in view of the further fact that the charge was erroneous, we have concluded that, if the plaintiff will submit to a remittitur of $2,000, the judgment will be affirmed. We are impelled to this view by reason of the provision of Section 11364, General Code, which provides that judgments shall not be reversed when substantial justice has been done. If plaintiff does not consent to said remittitur, the judgment will be reversed for error in the charge of the court, and a new trial ordered.

Judgment accordingly.

BUCHWALTER, P.J., and HAMILTON, J., concur.