Byre v. Wieczorek

• Decision Date: 25 April 1974
• Docket Number: No. 11139--,11139--
• Citation: 217 N.W.2d 151,88 S.D. 185
• Parties: Edward BYRE, Plaintiff and Respondent, v. Bruno WIECZOREK, Defendant and Appellant. a--FRW.
• Court: South Dakota Supreme Court

Page 151

217 N.W.2d 151

88 S.D. 185

Edward BYRE, Plaintiff and Respondent, v. Bruno WIECZOREK, Defendant and Appellant.

No. 11139--a--FRW.

Supreme Court of South Dakota.

April 25, 1974.

Charles Rick Johnson, Johnson & Johnson, Gregory, Sam Masten, Canton, for defendant and appellant.

J. L. Morgan, Morgan & Fuller, Mitchell, for plaintiff and respondent.

WINANS, Justice.

This action in tort for damages against the defendant because of a battery against plaintiff on May 10, 1969 is before us for the second time. The first trial resulted in a verdict in favor of plaintiff, and upon appeal, this court in its reversal limited the issues to be tried to actual damages. The second trial on the issue of damages again resulted in a verdict for the plaintiff, this time in the sum of $60,000. The appeal is from the judgment and the order denying the motion for new trial. The fact situation surrounding the tort is set forth in this court's prior judgment, the case being recorded in 85 S.D. 645, 190 N.W.2d 57.

The evidence in brief shows that plaintiff was 38 years of age at the time of the injury; that he had served four years and two months in the U.S. Coast Guard, having been released in 1956 and thereafter engaged in the ranching business; that while in the Coast Guard he received a student's license to pilot an airplane and that in 1954 or 1955 he received his private license.

As a private pilot he would have the privilege of hauling passengers but not for hire. As a student pilot he could operate an airplane by himself but could not take passengers. In 1958 he obtained his commercial license, permitting him to charge for services as a pilot, flying passengers for hire or spraying crops. Thereafter and prior to being injured, the plaintiff had passed the written examination and had received part of his flight instruction for instrument rating but did not have sufficient hours to take his flight check ride. He had attended ground schools in Huron and Winner, South Dakota, and had attended a seminar on instruments in Sioux Falls, South Dakota, given by the Federal Aviation Agency or Administration out of Oklahoma City, the agency licensing pilots in this country. Having passed the written examination in December of 1968, he had been preparing for the flight test.

By 1959 he had started commercial activities by flying mostly chartered planes, mainly for people in and around Chamberlain. In 1963 he received his flight instructor rating, following which he occasionally instructed students. During most of this time he was operating his farm and ranch. In 1963 the plaintiff flew aerial surveys for the State Game, Fish and Parks Department, making such surveys every year until he was grounded by his injuries received at the hands of the defendant. The state said him at the start $15 per hour for the airplane and his services as pilot. As the years went on and right at the last, they had raised it to $20 per hour, the amount he received each year varying from $2000 to $8000. In 1967 and 1968 plaintiff was aerial spraying, being paid by the acre and averaging about $1.25 per acre which included the cost of both the material used and the airplane. To be come an aerial applicator, plaintiff passed a test given by the South Dakota Department of Agriculture which required knowledge in the use of chemicals and in the difference in chemicals and how to mix them, and included a written test on such knowledge. In addition the plaintiff did charter and instructional work and earned as a pilot, if the student had his own plane, from $5 to $6 per hour, and in addition from $12 to $17 per hour for the rent of his planes.

In 1967 plaintiff acquired a Cessna 150 trainer plane and a Mooney Mark 21 aircraft for chartering and rental, which he kept at the Chamberlain airport where he was office manager. In 1967 he and his uncle had four planes, a Cessna 180, an Aeronca Champ, in addition to the above two planes of plaintiff's. During all of this time, in addition to his flying, he operated the farm or ranch in Lyman County. In 1968 he was notified of the intention to sell the place he was renting. He continued to care for his cattle until March of 1969.

Early in 1969 he entered into an employment agreement with Mr. Wieczorek, defendant in this action, to fly a Gruman Ag Cat plane, a highly special crop-spraying plane, to do aerial spraying, at $500 per month plus a 10% Commission on the fertilizer applied. On May 10, 1969 at Huron, following some angry words between them, defendant struck the plaintiff on the left side of the face, breaking his jaw, pulling plaintiff's coat over plaintiff's head and putting an armlock on him. Plaintiff was flown to the Chamberlain hospital and placed under the care of Dr. Holland. In addition to the injured jaw plaintiff also had a cut on his right eye, bruises and abrasions, a split over the top of his ear and a bruised shoulder and back.

Dr. Robert Loos, a Chamberlain dentist, was called in to wire plaintiff's jaws together. The plaintiff was hospitalized eight days, and required to suck food through his teeth during the six weeks his jaws were wired, resulting in a weight loss of 22 pounds. The plaintiff began noticing dizziness, ringing in his ears, headaches, loss of balance especially in the dark, and dizziness when riding in or driving a car.

In August or September of 1969 Dr. Holland advised plaintiff he could return to work if it were in some type of office or in a garage as a parts man or something of that sort. After being unsuccessful in securing such employment the plaintiff purchased a hay grinder in December of 1969, grossing $1,034.85 during that season. Plaintiff went to work for Speckels in 1970 as a carpenter's helper at $3.00 per hour with the understanding that he could not work at heights, his gross earnings amounting to $2,758.50 for that year. That fall plaintiff returned to hay-grinding, grossing $3,037.50 in that season. In the summer of 1971 he worked as an equipment operator for Kent Brothers Construction, grossing $3,546.04. During this employment he suffered with dizziness while operating the equipment. After an unsuccessful attempt to sell the hay-grinding equipment, the plaintiff returned to grinding, grossing $2,699 in the 1971 season. Since that time plaintiff has sold the hay grinder and has entered the dairy business in partnership with his father. Plaintiff's share of the monthly milk check has been approximately $430 and $450 per month.

Prior to working for the defendant the plaintiff had flown approximately 7,200 hours including approximately 1000 hours of instructional work and approximately 500 hours of aerial spraying. He had also been active in the Flying Farmers Organization, serving as president in 1968 and 1969. He was voted the Airport Operator of the Year in 1968 and the Flying Farmer of the Year in 1969. However, after the injury the plaintiff could not qualify for the medical certificate required by the Federal Aeronautics Agency and, according to the testimony of the two FAA medical examiners, the plaintiff could not pass such a medical examination.

The medical evidence submitted at the trial was that plaintiff incurred a broken jaw, a sprained shoulder, small lacerations of the external canal of the left ear and a cerebral concussion. This resulted in tinnitus (ringing in the ear) and vertigo (dizziness sometimes resulting in nausea). The vertigo condition was labeled as chronic labyrinthitis with two examining physicians testifying as to its being permanent. Chronic labyrinthitis was caused by an injury to the inner ear, according to Dr. Gregg's testimony, in plaintiff's case resulting in a hearing loss of 15% In the left ear or 1% On the whole man concept.

Shortly before commencing the second trial on February 2, 1972 the plaintiff amended his complaint as a second amended complaint in which plaintiff Brye claimed hospital and medical expenses in the amount of $896.52, loss of earnings of $37,000, and hearing loss, broken jaw, permanent partial injury to the inner ear, pain of body and mind past and future, and loss of future earnings and earning capacity of $150,000. After both parties had rested their case, plaintiff amended the second amended complaint by alleging general damage in the amount of $250,000 for those particular losses claimed in the second amended complaint in the sum of $150,000.

The defendant in his appeal has asserted error under five assignments which in general are as follows: (1) Adverse ruling by the court regarding Byre's past earnings loss, (2) Admission of certain hypothetical testimony bearing upon Byre's earning capacity, (3) Insufficiency of the evidence to justify the verdict, (4) Error of the trial court in refusing to allow a new trial because of newly discovered evidence, (5) The judgment entered by the trial court was contrary to the evidence and the law applicable thereto.

In his brief defendant states, 'Because the assignments of error in this case are so closely related they will be argued under a single point. It is appellant's primary contention on this appeal that the lower court took an erroneous approach to the issue of what Byre's past loss of earnings were up to the time of trial.'

Under this first assignment of error defendant argues that the court confused 'loss of earnings' with 'loss of earning capacity'. In this connection he quotes the comment to Pattern Jury Instructions, Civil, No. 30.07:

'Occasional confusion has resulted between two distinct factors of damage: (1) loss of earnings suffered up to the time of trial, and (2) detriment to be suffered in the future from loss of earning capacity. This instruction deals with the former, while the following instruction (30.07--1) deals with the latter. The latter need not be specially pleaded since it is an element of general damages. Allen v. Martley, 77 S.D. 133, 87 N.W.2d 355. However, loss of earnings must be specially pleaded...