Baxter v. Baker

• Decision Date: 21 May 1969
• Parties: Peggy J. BAXTER, formerly Peggy J. Riley, Respondent, v. Edwin M. BAKER and Patricia Baker, Appellants.
• Court: Oregon Supreme Court

Page 456

451 P.2d 456

253 Or. 376

Peggy J. BAXTER, formerly Peggy J. Riley, Respondent, v. Edwin M. BAKER and Patricia Baker, Appellants.

Supreme Court of Oregon, In Banc.

Argued before Department 2 and Submitted June 7, 1968.

Reargued Nov. 13, 1968.

Decided March 12, 1969.

Rehearing Denied May 21, 1969.

Richard Bryson, Eugene, argued the cause for appellants. With him on the briefs were Calkins & Bryson, Eugene.

Dwight L. Schwab, Portland, argued the cause for respondent. With him on the briefs were Hutchinson, Schwab & Burdick, Frank H. Hilton, Jr., and William C. McCarthy, Portland.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE and HOLMAN, JJ.

GOODWIN, Justice.

The defendant in a personal-injury case appeals from a judgment for the plaintiff, assigning error to an instruction that authorized the jury to award the plaintiff 'special damages' for 'lost earnings,' when the evidence showed that the plaintiff at the time of her injury was not employed for wages, but was a college student.

There is no substantial disagreement, either between counsel or among the members of this court, with reference to the compensability of the loss of earning capacity, by whatever name it is called. All agree that any person, employed or unemployed, whose earning capacity has been impaired through the negligence of another, has a right to recover money damages for the impairment of his earning capacity. All likewise agree that this right of recovery is no less important to an injured person who was looking for a job than to an injured person who had one. Furthermore, losses calculated from the date of the injury to the date of the trial are felt just as keenly by the injured person as losses calculated from the date of the trial until some unspecified time in the future. The difficulty lies in framing instructions for the jury on its function in dealing with these losses.

For convenience, the courts of this state have followed the practice of instructing that impaired earning capacity is compensable as 'general damages.' Lost wages can be covered in an instruction on 'special damages' computed for the period from the date of injury to the date of the trial, but only if the plaintiff proves that he was employed at a fixed wage at the time of injury. See Fields v. Fields, 213 Or. 522, 537, 307 P.2d 528, 326 P.2d 451 (1958). Whether or not a plaintiff was employed at the time of his injury, the jury is told that impaired earning capacity from the date of the trial on into the future is to be included within those losses compensable as 'general damages.' See Oregon Jury Instructions for Civil Cases, numbered 30.02 and 30.03, promulgated by the Oregon State Bar. These instructions, with minor modifications as given from the bench in an actual trial, are set out in Martin v. Hahn, Or., 451 P.2d 465, decided this day. Both instructions were given in substance in the case at bar.

After having the benefit of reargument in this and the companion case (Martin v. Hahn), a majority of this court has concluded that the present method of instructing juries should not be disturbed. The present method, when uniformly applied, is understood by the bench and bar, and does not appear to have worked injustice. The only caution necessary is for courts to refrain from instructing on special damages in inappropriate cases.

Under our present instructions, a plaintiff who was not employed on the day of his injury does not receive the strategic advantage of an instruction calling the jury's attention to 'special damages' for 'lost wages.' But his substantive right to recover for the impairment of his earning capacity can be fully protected by an instruction that the jury is to consider any impairment of earning capacity as a loss compensable under general damages. Evidence of such impairment can be produced during the trial and exploited on argument just as is done with other evidence of losses compensable as general damages. To the argument that the working plaintiff is thus given an advantage not shared by his equally deserving but temporarily unemployed fellow plaintiff, the existing case law says in effect that the law takes the two plaintiffs as it finds them.

The majority of this court is not convinced that the evil in an instruction on special damages is so great as to warrant wholesale overruling of former decisions. It is possible that a clean sweep at this time might improve the trial practice, but we do not wish to upset a settled practice which appears to be working in order to test a speculative improvement. While we decline to change the rule at this time, we are equally reluctant to extend the giving of an instruction on special damages into situations authorized neither by logic nor by precedent. A plaintiff who was not earning wages at the time of injury is not entitled to the instruction on special damages. Accordingly, we must hold that it was error to give an instruction singling out for special jury consideration an item of 'lost wages' as 'special damages' in a case in which the evidence proved merely a loss of earning capacity, a matter that was fully compensable under the instruction for general damages.

Inasmuch as we cannot say with certainty that the error in the case at bar did not affect the verdict, we must reverse and remand for a new trial. The defendant has advanced a number of other assignments of error, but, since they deal with trial tactics and raise questions of the kind that are within the discretionary control of the trial court, we will not extend this opinion by a discussion of points that may not be raised again. We assume that the case can be properly tried without undue necessity for admonitory intervention from the bench.

Reversed and remanded.

O'CONNELL, Justice (dissenting).

This case was originally assigned to me. When I first examined the briefs it appeared that the case did not present any special problems and could be disposed of readily by the application of well-established and sound principles of law. The more I studied the matter, the more I realized that the Oregon law relating to loss of earnings was confusing and in most respects did not make sense. I prepared an opinion substantially in the form in which it appears below and circulated it among the members of the court, but it did not win the day and since the case had been argued in department it was set for reargument en banc along with the companion case of Martin v. Hahn, Or., 451 P.2d 465.

In calling for reargument we requested counsel to present supplemental briefs and oral arguments specifically directed to the question of the validity of the distinction made in our previous cases between pretrial and post-trial damages relating to earnings. The reargument did not change the alignment of the members of the court and consequently the case was reassigned.

As I interpret the majority opinion the court does not disagree with my analysis of the problem but refuses to change the law because 'the present method is well understood by the bench and bar and does not appear to work injustice.' I do not know what is meant by 'understood' in this context. I doubt that many members of the bench and bar have really understood why loss of earnings before and after trial are treated differently--it is more likely that the distinction is perpetuated simply because it has always been done the same way in the past. When questioned on oral argument counsel for both sides in the two cases (which were argued together) seemed to agree that the present method of treating differently pre-trial and post-trial loss of earnings did not make much sense. ¹ The majority states that the present method 'does not appear to have worked injustice.' I am not so sure. It seems likely that some members of the bar and some trial judges have proceeded upon the assumption that if the plaintiff was not employed at the time of injury he could not recover for impairment of earning capacity before trial--his recovery being limited to post-trial impairment of earning capacity. ²

But even assuming the present method is not unjust, why should we perpetuate a distinction which is indefensible. When the majority opinion is stripped to its essential holding, it comes down to this: A plaintiff who is unemployed at the time of his injury is not entitled to an instruction specifying the dollar amount of his loss of earnings up to the time of trial or thereafter. A plaintiff who is employed at the time of injury is entitled to such an instruction. Note that the only differentation which the majority would make in the treatment of these two classes of plaintiffs is in the Instruction to the jury on the Amount of damages for the loss of earnings item. In all other respects the employed and the unemployed plaintiff are treated the same. The unemployed plaintiff can prove his capacity to earn, the prospects for employment at the time he was injured, his prospects for advancement, etc. And the majority would concede that he would be entitled to an instruction to the effect that the impairment of his earning capacity is to be computed up to the time of trial by multiplying his hourly wage rate by the number of hours of employment he lost as a result of the injury. But there he must stop--the total amount he would have earned cannot be included in the instruction; the complete numbers game can be played only by the plaintiff who happened to be employed when he was injured. It must be obvious to anyone that this does not make any sense. And I say that it is demeaning for this court to perpetuate it.

To explain my position more specifically I am setting out in the following paragraphs the opinion, with minor changes, which I originally submitted to the court for adoption.

Plaintiff at the time of her injury was not employed; she was a student at the University of Oregon. She had, until approximately a year and a half prior to her accident,...