Person v. Sears, Roebuck & Co.

89 N.W.2d 694, 252 Minn. 110, 1958 Minn. LEXIS 592

• Court: Supreme Court of Minnesota
• Decided: April 3, 1958
• Docket: 37,182
• Status: Published

Opinions

Frank T. Gallagher, Justice.

Appeal from an order denying the motion of defendant, Sears, Roebuck and Company, for a new trial.

Plaintiff, in her complaint, alleged that on January 16, 1954, she was in defendant’s store for the purpose of transacting business; that an agent and employee of defendant so carelessly operated a hand truck, which at the time was loaded with a refrigerator, as to cause the same to collide with plaintiff, throwing her violently to the floor; and that as a result plaintiff suffered certain injuries and permanent disabilities. Defendant in its answer admitted that the accident occurred as alleged in plaintiff’s complaint but denied that her injuries were proximately caused by this negligence and also denied that plaintiff’s injuries were of the nature and extent alleged. Following the trial, a verdict was returned for plaintiff.

On appeal it is contended by defendant that the trial court erred in instructing the jury as follows:

“* * * She would also be entitled to recover, that is, if you find that her earning capacity was affected or diminished in any sense through this accident or as a result of the accident. If you find from the evidence that the plaintiff did have earning capacity, she would be entitled to recover for loss or impairment of earning capacity from the time of the accident to the time of the trial, and also for future earning capacity as the same appears to a reasonable certainty. In determining such damages, that is, damages to her earning capacity, you may take into consideration her age, health and habits, together with the nature of the injury which she claims to have suffered, its severity, and the partial — or its permanency. All those matters you have a right to consider in connection with the question of whether her earning capacity was lessened, or is lessened, or will be lessened or diminished in the future. You may consider these factors together with all other facts or circumstances shown in the evidence.”

In this connection defendant claims that the jury should not have been allowed to take into consideration a diminution of future earning capacity of plaintiff when there was no evidence in the record of the value of plaintiff’s earning capacity. The only issue we deem it necessary to consider, therefore, is whether it was proper to submit for the jury’s determination the loss of future earning capacity where there was no evidence in the record of the value of that person’s earning capacity.

In LeMay v. Minneapolis St. Ry. Co. 245 Minn. 192, 71 N. W. (2d) 826, plaintiff was able to show a loss of earnings from the date of the accident, October 13, 1948, until January 1951. We said there that it was proper to show the wages she was reasonably certain to receive from the date of her injury until January 1951, at which time she was pregnant and would have discontinued work. In addition, we said there that the plaintiff could recover for loss of future earning capacity even though she was presently performing only household duties and did not intend to resume gainful employment, citing Rodgers v. Boynton, 315 Mass. 279, 52 N. E. (2d) 576, 151 A. L. R. 475, and Marshall v. Smith, 131 Cal. App. 258, 21 P. (2d) 117. It was held under the facts and circumstances of that case that the jury was entitled to determine the extent to which her earning capacity had diminished. However, in that case, the jury had before it evidence of the plaintiffs 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. Thus, two elements were necessary in that case to submit the issue of loss of future earning capacity to the jury: (1) How much plaintiff could have earned if she had not been injured; and (2) the severity of her injury.

In the instant case, as in the LeMay case, the evidence would have been sufficient for the jury to determine the effect of the severity of the injury, but, unlike the LeMay case, the jury in this case could not reduce this to a value without speculation, since there is no evidence in the record as to what plaintiff would or could have earned.

According to Restatement, Torts, § 924, comment d, the extent of future harm to the earning capacity of an injured person is measured by the difference, viewed as of the time of trial, between the value of plaintiffs services as they will be because of the injury and as they would have been if no harm had occurred. This difference is the resultant derived from reducing to present value the anticipated losses of earnings dining the period of the prospective life the plaintiff would have had but for the defendant’s act. See, also, Hallada v. G. N. Ry. 244 Minn. 81, 69 N. W. (2d) 673. The trier of facts must ascertain, as nearly as can be done in advance, the difference between the yearly earnings which the plaintiff probably would or could have received during his life expectancy if the injury had not occurred and the earnings which he probably will be able to receive during the period of life expectancy as now determined. Restatement, Torts, § 924, comment d.

There is evidence in the record before us that plaintiff, prior to the accident and for some time thereafter, operated a roominghouse, but the value of her services as a roominghouse operator is not to be found in the record. There is also evidence of plaintiff’s ability to do general housework. However, there is no evidence to show the value of such general housework. The only thing remotely connected with this in the record is the testimony of plaintiff that at one time subsequent to her injury she hired a person to come in for one day for the purpose of cleaning walls and that the charge for this one day’s work was $15. However, in our opinion, this would not be sufficient for the jury to base a finding on impairment of future earning capacity since there is nothing in the record tending to show that the value of plaintiff’s ability to do general housework would be $15 a day. Therefore, we must conclude that it was error for the trial court to submit the issue of future earning capacity of plaintiff in this case, and a new trial should be granted.

Reversed and new trial granted.