Kephart v. Backhaus

312 N.W.2d 473, 1981 S.D. LEXIS 364

• Court: South Dakota Supreme Court
• Decided: November 18, 1981
• Docket: 13286
• Status: Published

Opinions

WOLLMAN, Chief Justice.

Following a trial to the court, appellant was awarded $2,666.04 for damages sustained in an automobile accident. We affirm.

Appellee admitted liability for the collision, which occurred at the intersection of State Highways 50 and 19 near Vermillion on January 2, 1978. The court awarded appellant $560.04 for damages to his vehicle, $606 for his medical expenses, and $1,500 “for any wages lost due to the accident and for pain and suffering.”

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The sole issue on appeal is whether the award for lost earnings allowed by the trial court was insufficient. After considering the testimony of appellant and his witnesses, the court found that appellant was totally disabled from January 2 to February 6, 1978, as a result of back injuries sustained in the accident, and was partially disabled from February 7 through May 17, 1978, after which time he was fully employable. Appellant had voluntarily terminated his employment on December 31, 1977, and admitted at trial that prior to the accident he had not planned to look for work for another two months. Appellant was neither hospitalized nor homebound during the time of disability. During this time he continued treatment with the chiropractor he had been seeing for treatment of an earlier back injury.

Damages must be proved with reasonable certainty. Schmidt v. Forell, 306 N.W.2d 876 (S.D.1981); Schmidt v. Wildcat Cave, Inc., 261 N.W.2d 114 (S.D.1977); Fredrick v. Dreyer, 257 N.W.2d 835 (S.D.1977). Loss of past earnings is capable of fairly definite proof. Byre v. Wieczorek, 88 S.D. 185, 217 N.W.2d 151 (1974); Allen v. Martley, 77 S.D. 133, 87 N.W.2d 355 (1958).

This Court will not set aside a lower court’s findings of fact unless they are clearly erroneous, and “due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” SDCL 15-6-52(a). As we said in In re Estate of Hobelsberger, 85 S.D. 282, 289, 181 N.W.2d 455, 459 (1970):

In applying the clearly erroneous standard we must bear in mind that our function is not to decide factual questions de novo. The question for the appellate court is not whether it would have made the same findings the trial court did, but whether on the entire evidence it is left with a definite and firm conviction that a mistake has been committed.

After a review of the evidence, we cannot say that we are left with a definite and firm conviction that the trial court erred in failing to grant appellant more than $1,500 for wages lost due to the accident. The record supports the award. Accordingly, the judgment is affirmed.

DUNN, MORGAN and FOSHEIM, JJ., concur. HENDERSON, J., dissents.

Although it may be conceded that the trial court should have stated its findings separately on the issues of lost earnings and pain and suffering, in view of appellant’s testimony that he had voluntarily terminated his employment prior to the accident and that he had not planned to look for work for another two months, the failure of the trial court to make separate findings was not prejudicial to any substantial right. Ellens v. Lind, 65 S.D. 620, 624, 277 N.W. 40, 42 (1937).